MORGAN VICTOR MANDULEY еt al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. MICHAEL ROSE et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. S095992
Supreme Court of California
Feb. 28, 2002
27 Cal. 4th 537
William J. LaFond; Kerry L. Steigerwalt; and Charles M. Sevilla for Petitioner Morgan Victor Manduley.
Haus & Damiani and Lisa J. Damiani for Petitioner Steven James DeBoer.
Patrick Q. Hall for Petitioner Kevin Scott Williams.
Timothy A. Chandler, Alternate Public Defender, Mary Ellen Attridge and Jose H. Varela, Deputy Alternate Public Defenders, for Petitioner Adam Mitchell Ketsdever.
Steven J. Carroll, Public Defender, Gary R. Nichols, Stewart Dadmun and Jo Pastore, Deputy Public Defenders, for Petitioner Michael Anthony Rose.
Marc B. Geller for Petitioner Nicholas Paul Fileccia.
Bardsley & Carlos, Francis J. Bardsley and Judith A. Litzenberger for Petitioner Bradley Hunter Davidofsky.
Howard, Rice, Nemerovski, Canady, Falk & Rabin, Steven L. Mayer, Kimberly A. Proctor, Erick M. Silber; Robert Kim, Margaret C. Crosby; Mark D. Rosenbaum; Jordan C. Budd for American Civil Liberties Union of Northern California, America Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego and Imperial Counties, League of Women Voters of California, California Teachers Association, Children‘s Advocacy Institute, Coleman Advocates for Children and Youth and Pacific Juvenile Defender Center as Amici Curiae on behalf of Petitioners.
John T. Philipsborn for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioners.
James F. Sweeney for California Catholic Conference as Amicus Curiae on behalf of Petitioners.
Munger, Tolles & Olson, Jeffrey L. Bleich, Deborah N. Pearlstein; Lawyers Committee for Civil Rights of the San Francisco Bay Area, Robert Rubin and Rebekah B. Evenson for The Center on Juvenile and Criminal Justice, The National Center for Youth Law, Legal Services for Children, The National Association of Counsel for Children, The American Society for Adolescent Psychiatry, The American Academy of Child and Adolescent Psychiatry, The Center for Young Women‘s Development, The Trauma Foundation, The Asian Law Caucus, The Ella Baker Center for Human Rights and Children Now as Amici Curiae on behalf of Petitioners.
Elissa Barrett; Rohde & Victoroff and Stephen F. Rohde for Progressive Jewish Alliance as Amicus Curiae on behalf of Petitioners.
Earl Warren Legal Institute and Franklin E. Zimring for Law Professors and Juvenile Justice Specialists Elizabeth Cauffman, Laurence Steinberg, Dean Hill Rivkin, Jeffrey Fagan, Darrell F. Hawkins, Peter Edelman, Jan C. Costello, Mercer Sullivan, Elizabeth Scott and William Patton as Amici Curiae on behalf of Petitioners.
Carla J. Johnson; Daniel M. McGuire and Debra A. Gutierrez-McGuire for Criminal Defense Attorneys of Michigan as Amicus Curiae on behalf of Petitioners.
Mark I. Soler, Michael Finley; Laval Miller-Wilson and Marsha Levick for Youth Law Center, Juvenile Law Center, Children‘s Defense Fund, Child Welfare League of America, National Council of La Raza, National Mental Health Association, National Urban League and The Sentencing Project as Amici Curiae on behalf of Petitioners.
Ron Boyer, Deputy Public Defender (Cоntra Costa) for California Public Defenders Association as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Paul J. Pfingst, District Attorney, Thomas F. McArdle, Hector M. Jiminez and Anthony Lovett, Deputy District Attorneys, for Real Party in Interest.
Kent S. Scheidegger and Charles L. Hobson for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Real Party in Interest.
Gary T. Yancey, District Attorney (Contra Costa) and L. Douglas Pipes, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Real Party in Interest.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Laura Whitcomb Halgren, Raquel M. Gonzalez and Patti W. Ranger, Deputy Attorneys General, as Amici Curiae.
OPINION
GEORGE, C. J.--Proposition 21, titled the Gang Violence and Juvenile Crime Prevention Act of 1998 and approved by the voters at the March 7,
Petitioners are eight minors accused of committing various felony offenses.2 As authorized by
In considering the validity of the Court of Appeal‘s decision, we emphasize that this court is not confronted with any question regarding the wisdom of authorizing the prosecutor, rather than the court, to decide whether a minor accused of committing a crime should be treated as an adult and subjected to the criminal court system. In the present case, rather, we must decide whether
Because the Court of Appeal held that the statute violates the separation of powers doctrine, the appellate court did not resolve the other constitutional challenges to
I
By a single felony complaint filed in the superior court, the People charged petitioners with eight felonies: four counts of assault with a deadly weapon by means of force likely to produce great bodily injury against four victims (
Petitioners demurred to the complaint, contending that
The superior court overruled the demurrers. The court concluded that
Petitioners Manduley and Rose filed separate petitions for writ of mandate and/or prohibition in the Court of Appeal. They sought an order dismissing the criminal complaint, directing the superior court to certify the matter to the juvenile division of the superior court for the filing of a petition pursuant to
The People sought review of the Court of Appeal‘s resolution of the separation of powers question. We granted review and specified that the
II
We begin our analysis of petitioners’ challenge to
The law apart from the provisions of Proposition 21 provides that except as otherwise specified by statute, any individual less than 18 years of age whо violates the criminal law comes within the jurisdiction of the juvenile court,3 which may adjudge such an individual a ward of the court. (
A minor 14 years of age or older who is alleged to have committed one of the serious crimes specified in
Before the passage of Proposition 21, certain minors who were 16 years of age or older at the time they committed specified crimes were required to be prosecuted in a court of criminal jurisdiction—without any requirement of a determination by the juvenile court that the minor was unfit for treatment under the juvenile court law.
Former
Proposition 21 revised the juvenile court law to broaden the circumstances in which minors 14 years of age and older can be prosecuted in the criminal division of the superior court, rather than in juvenile court.
Where the prosecutor files an accusatory pleading directly in a court of criminal jurisdiction pursuant to
In addition, Proposition 21 amended
Among the changes effected by Proposition 21, petitioners challenge only the aspect of
III
Petitioners first contend that
The majority of the Court of Appeal agreed with petitioners that
The dissent in the Court of Appeal, on the other hand, stated that prosecutors traditionally have possessed great discretion, largely unsupervised by the judiciary, to determine what charges to file against an individual, or whether to file charges at all. The dissent observed that a prosecutor‘s decision pursuant to
We believe that the majority of the Court of Appeal adopted an unduly restrictive view of the scope of the executive power traditionally vested in prosecutors to decide what charges shall be alleged, and against whom charges shall be brought. This broad power to charge crimes extends to selecting the forum, among those designated by statute, in which charges shall be filed. Contrary to the majority of the Court of Appeal, the circumstance that such a charging decision may affect the sentencing alternatives available to the court does not establish that the court‘s power improperly has been usurped by the prosecutor.
“‘[S]ubject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch.’ [Citations.]” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516 [53 Cal.Rptr.2d 789, 917 P.2d 628] (Romero).) “[T]he power of the people through the statutory initiative is coextensive with the power of the Legislature.” (Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675 [194 Cal.Rptr. 781, 669 P.2d 17].) “[T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from ‘the complex considerations necessary for the effective and efficient administration of law enforcement.’ [Citations.] The prosecution‘s authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 134 [77 Cal.Rptr.2d 848, 960 P.2d 1073].) “When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature.” (People v. Tenorio (1970) 3 Cal.3d 89, 94 [89 Cal.Rptr. 249, 473 P.2d 993].) The judicial power to choose a particular sentencing option, however, may be eliminated by the Legislature and the electorate. (Romero, supra, 13 Cal.4th at p. 516.)
Petitioners contend that the legislative branch unconstitutionally has conferred upon the executive branch (that is, the prosecutor) an exclusively judicial function of choosing the appropriate dispositions for certain
We reached a similar conclusion in Davis v. Municipal Court (1988) 46 Cal.3d 64 [249 Cal.Rptr. 300, 757 P.2d 11] (Davis). In that case, we considered a constitutional challenge to a local diversion program that conferred upon the district attorney the authority to decide, before charges were filed, whether a defendant would be eligible for pretrial diversion. Eligibility for the diversion program was limited to individuals charged with a misdemeanor offense. Thus, if an offense could be charged as either a misdemeanor or a felony, the prosecutor‘s decision to charge such a “wobbler” as a felony precluded diversion, even if the court subsequently exercised its discretion to reduce the felony charge to a misdemeanor. The defendant in Davis contended that conditioning eligibility for diversion upon the prosecutor‘s decision to charge a wobbler as a misdemeanor improperly infringed upon the judicial power to make the ultimate determination whether a particular defendant should be diverted. We rejected the contention that this aspect of the diversion program violated the separation of powers doctrine.
Our decision in Davis explained: “It is true, of course, that a prosecutor‘s exercise of discretion to charge a defendant with a felony rather than a misdemeanor when the facts of the case would support either charge will frequently have a variety of effects on the ultimate judicial disposition of the matter. A prosecutor‘s charging decision may, for example, determine whether a defendant is convicted of an offense for which probation may not be granted, or for which a specific punishment is mandated. Those familiar consequences of the charging decision have, however, never been viewed as converting a prosecutor‘s exercise of his traditional charging discretion into a violation of the separation-of-powers doctrine.” (Davis, supra, 46 Cal.3d at p. 82.)
Like the decision whether to charge a wobbler as a misdemeanor, considered in Davis, supra, 46 Cal.3d 64, a prosecutor‘s decision pursuant to
Petitioners concede that the legislative branch possesses the power to require that particular charges against certain minors always be initiated in criminal court (
The prosecutor‘s discretionary charging decision pursuant to
Contrary to the majority of the Court of Appeal, the circumstance that a fitness determination for minors accused of crimes within the scope of
The Court of Appeal majority‘s analysis misapprehends the purpose and scope of the separation of powers doctrine. The charging authority implicated by
The majority of the Court of Appeal also erred in equating the prosecutor‘s decision pursuant to
Furthermore, the primary purpose of the separation of powers doctrine “is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.” (Parker v. Riley (1941) 18 Cal.2d 83, 89 [113 P.2d 873, 134 A.L.R. 1405].) “The doctrine has not been interpreted as requiring the rigid classification of all the incidental activities of government, with the result that once a technique or method of procedure is associated with a particular branch of the government, it can never be used thereafter by another.” (Id. at p. 90) The separation of powers doctrine “recognizes that the three branches of government are interdependent, and it permits actions of one branch that may “significantly affect those of another branch.” [Citation.]” (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298 [105 Cal.Rptr.2d 636, 20 P.3d 533].) The doctrine ” “is not intended to prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch.” [Citation.]” (Ibid.)
The decision whether a minor is to be tried in the juvenile or the criminal division of the superior court, even before the passage of Proposition 21, has not been considered to constitute an exclusively judicial function. For example, if a prosecutor decides to charge a minor at least 14 years of age with certain serious crimes, such as murder with special circumstances when the minor personally killed the victim, the minor must be prosecuted in a court of criminal jurisdiction. (
Similarly, the prosecutor‘s decision whether to file certain charges directly in criminal court pursuant to
Petitioners acknowledge that determining an individual‘s eligibility for a particular sentencing alternative is not exclusively a judicial power, and that this power properly may be exercised by the prosecutor or the Legislature. They contend, however, that a prosecutor‘s decision whether a particular minor is to be charged in criminal court instead determines suitability for a sentencing alternative, and that such a determination is solely a judicial power. Petitioners rely upon On Tai Ho, supra, 11 Cal.3d 59, and Sledge v. Superior Court (1974) 11 Cal.3d 70 [113 Cal.Rptr. 28, 520 P.2d 412] (Sledge), companion cases in which this court considered a pretrial diversion program for defendants charged with certain narcotics offenses. Under the statutory scheme at issue in those cases, the prosecutor conducted a preliminary screening to determine whether a defendant met certain minimum standards of eligibility specified by statute. If it appeared that the defendant was eligible for diversion, the court conducted a hearing and decided whether to divert the defendant into a rehabilitation program. (On Tai Ho, supra, 11 Cal.3d at pp. 62-63.)
In On Tai Ho, supra, 11 Cal.3d 59, we held that a statutory provision purporting to subject the court‘s diversion decision to a prosecutorial veto violated the separation of powers doctrine, because the decision whether to divert was an exercise of judicial power. Our opinion emphasized that this decision was made after the jurisdiction of the court had been invoked, that the diversion hearing mandated by statute was a judicial proceeding, and that the statute vested in the court the power to weigh the evidenсe and make a determination as to the appropriate disposition.
In Sledge, supra, 11 Cal.3d 70, we held that the district attorney‘s preliminary determination of eligibility for the program was not a judicial act and therefore did not violate the separation of powers doctrine. Our decision relied upon the circumstances that the information required to determine eligibility was in the possession of the district attorney rather than the court, that the statute specified which facts were material and relevant to eligibility and did not confer upon the prosecutor any power to weigh the effect of those facts, and that the prosecutor‘s determination that there was evidence rendering a defendant ineligible for diversion could be reviewed on appeal from any conviction.
Any distinctions between the prosecutor‘s authority at issue in Sledge, supra, 11 Cal.3d 70, and that in the present case, however, do not establish that the prosecutor‘s exercise of discretion pursuant to
Petitioners further characterize the prosecutor‘s decision pursuant to
Moreover, the Legislature in other contexts has authorized the People to pursue allegations of criminal conduct in alternative fora, sometimes with different penalties. For example, before unification of the California trial courts, the prosecutor‘s decision whether to charge an offense as a misdemeanor or a felony could determine whether the matter would be tried in municipal court or superior court. (See
We also find no merit in petitioners’ contention that the absence of statutory criteria guiding the prosecutor‘s decision pursuant to
Courts in several other jurisdictions have rejected similar challenges, based upon the separation of powers doctrine, to statutes conferring upon prosecutors the authority to decide whether to file charges against minors in criminal court rather than juvenile court. (E.g., People v. Thorpe (Colo. 1982) 641 P.2d 935, 938-940; State v. Cain (Fla. 1980) 381 So.2d 1361, 1367-1368; Bishop v. State (1995) 265 Ga. 821 [462 S.E.2d 716, 717]; People v. Conat (1999) 238 Mich.App. 134 [605 N.W.2d 49, 56-59]; Jones v. State (1982) 1982 Okla. 196 [654 P.2d 1080, 1082-1083]; Hansen v. State (Wyo. 1995) 904 P.2d 811, 819-820.) The Court of Appeal distinguished some of these decisions on the ground that the statutory schemes there at issue authorized the criminal court to remand the case to the juvenile system after the action had been commenced, thus preserving the authority of the judiciary. For the most part, however, this circumstance was not important to the analysis of these decisions, which in upholding the statutes relied
Having concluded that the Court of Appeal erred in holding
IV
Petitioners further challenge
The premise of petitioners’ claim is false, however, because minors who commit crimes under the circumstances set forth in
Statutory provisions that predate the adoption of Proposition 21 cannot properly be interpreted to afford minors a statutory right that is inconsistent
For similar reasons, an isolated phrase contained in
Several amici curiae supporting petitioners7 contend that juvenile offenders possess a constitutionally protected liberty interest in remaining in the juvenile court system, and that this interest precludes the prosecutor from filing charges against minors in criminal court without first providing notice and a hearing. The authority upon which amici curiae rely, however, found liberty interests arising from statutes that created an expectation that adverse action by the state would occur only upon the occurrence of certain conditions. (E.g., Vitek v. Jones (1980) 445 U.S. 480, 488-491 [100 S.Ct. 1254, 1261-1263, 63 L.Ed.2d 552] [transfer of prisoner to mental hospital permitted only after a finding of mental illness].)
Because petitioners do not possess a protected interest in being subject to the jurisdiction of the juvenile court, the authority upon which they rely in support of their claim is distinguishable. In Kent v. United States (1966) 383 U.S. 541 (Kent), the high court considered a statutory scheme conferring upon the juvenile court ” “original and exclusive” ” jurisdiction over a minor accused of committing various crimes. (Id. at p. 556.) The law authorized the juvenile court to waive its jurisdiction and transfer the matter to criminal court after a ” “full investigation,” ” but no statutory criteria or procedures governed the juvenile court‘s determination to waive jurisdiction. (Id. at p. 547.) The decision in Kent held that the juvenile court violated the minor‘s right to due process of law when it transferred the matter to criminal court without conducting a hearing or providing a statement of reasons. The United States Supreme Court explained that the waiver of jurisdiction in this context was a critically important action that determined vitally important statutory rights of the minor, including whether he was entitled to the special rights and immunities ordinarily conferred upon minors under the juvenile court law. Under these circumstances, the high court held, the minor was entitled to a judicial hearing affording “the essentials of due process and fair treatment.” (Id. at p. 562.) In connection with such a hearing, the minor possessed the right to the effective assistance of counsel, access to the records considered by the juvenile court, and a statement of reasons for the juvenile court‘s decision. (Id. at pp. 553-563; see also In re Winnetka V. (1980) 28 Cal.3d 587, 593-595 [169 Cal.Rptr. 713, 620 P.2d 163] [requiring procedural protections in connection with juvenile fitness determinations and dispositional orders made by the court].)
Unlike the statute considered in Kent, supra, 383 U.S. 541, California‘s juvenile court law does not confer upon the juvenile court original and exclusive jurisdiction over minors accused of crimes under the circumstances set forth in
As the Court of Appeal in the present case recognized, however, Kent, supra, 383 U.S. 541, held only that where a statute confers a right to a judicial determination of fitness for a juvenile court disposition, the due process clause requires that the determination be made in compliance with the basic procedural protections afforded to similar judicial determinations. A statute that authorizes discretionary direct filing in criminal court by the prosecutor, on the other hand, does not require similar procedural protections, because it does not involve a judicial determination but rather constitutes an executive charging function, which does not implicate the right to procedural due process and a hearing.
Numerous decisions from other jurisdictions support the conclusion that a prosecutor‘s discretionary decision to file charges against a minor in criminal court does not give rise to procedural protections ordinarily afforded in connection with a judicial decision. For example, in Woodard v. Wainwright (5th Cir. 1977) 556 F.2d 781, 784-787, the federal court of appeals considered a statute that precluded juvenile court jurisdiction over certain minors indicted for serious crimes. Noting the long tradition of prosecutorial discretion in charging crimes, the court held that the prosecutor‘s discretionary decision whether to present the case against the minor to a grand jury, and thus divest the juvenile court of jurisdiction upon indictment, did not trigger any due process right to a hearing. The decision in Woodard agreed with the statement in Russell v. Parratt (8th Cir. 1976) 543 F.2d 1214, 1216, that prosecutorial decisions whether to charge minors as adults or juveniles fall within ” “the long and widely accepted concept of prosecutorial discretion, which derives from the constitutional principle of separation of powers.” ” The court of appeals also relied upon Cox v. United States (4th Cir. 1973) 473 F.2d 334, 335, which determined that the decision by a United States attorney to charge a juvenile as an adult was ” “a prosecutorial decision beyond the reach of the due process rights of counsel and a hearing,” ” and upon United States v. Bland (D.C. Cir. 1972) 472 F.2d 1329, 1337, in which the court stated: “We cannot accept the hitherto unaccepted argument that due process requires an adversary hearing before the prosecutor can exercise his age-old function of deciding what charge to bring against whom. Grave consequences have always flowed from this, but never has a hearing been required.”
Relying in part upon the foregoing decisions, the Connecticut Supreme Court recently reached the same conclusion in upholding a statute requiring
In sum, under the circumstances of the present case, petitioners do not possess any right to be subject to the jurisdiction of the juvenile court. As we have concluded, the legislative branch properly can delegate to the prosecutor—who traditionally has been entrusted with the charging decision—discretion whether to file charges against a minor directly in criminal court, and the Legislature also can eliminate a minor‘s statutory right to a judicial fitness hearing. Therefore, a prosecutor‘s decision pursuant to
V
Petitioners next challenge
To succeed on their claim under the equal protection clause, petitioners first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549].) Petitioners do not challenge the classification expressly set forth in
As petitioners implicitly concede, all minors who meet the criteria enumerated in
Moreover, numerous decisions have upheld statutes conferring upon prosecutors the authority to make analogous decisions. For example, in Davis, supra, 46 Cal.3d 64, we determined that a provision limiting a defendant‘s eligibility for diversion to cases in which the prosecutor charged a wobbler as a misdemeanor did not violate equal prоtection principles. Our opinion explained that the eligibility rule was “no different than any other legislative rule which accords differential treatment to an individual depending on whether a prosecutor believes a greater or lesser charge is appropriate.” (Id. at p. 87.) We relied upon United States v. Batchelder (1979) 442 U.S. 114 [99 S.Ct. 2198, 60 L.Ed.2d 755] (Batchelder), which upheld a prosecutor‘s discretion to charge the defendant pursuant to a statute imposing a penalty that was harsher than that imposed by another statute proscribing precisely the same conduct. The high court held that in the absence of any showing that the prosecutor‘s exercise of discretion had been based upon an unjustifiable standard such as race, religion, or other arbitrary classification, the existence of such prosecutorial discretion did not violate equal protection principles. The high court‘s decision in Batchelder stated: “[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.
A prosecutor‘s discretionary decision pursuant to
The decision to file charges in criminal court pursuant to
Thus, petitioners cannot establish a violation of their right to the equal protection of the laws by showing that other minors in circumstances similar to those of petitioners can be prosecuted under the juvenile court law.
Several decisions from other jurisdictions are consistent with our conclusion that
In connection with their equal protection claim, petitioners independently rely upon
This court has stated that
In support of their claim based upon
In any event, we are not persuaded by the reasoning of the plurality opinion in Mohi.10 The opinion contrasted a prosecutor‘s traditional charging discretion with the prosecutor‘s assertedly arbitrary discretion to file charges against a minor directly in criminal court. According to the plurality opinion, traditional charging discretion concerned which law to apply to a single offender, whereas direct-filing discretion involved how to apply the same law to different offenders. (Mohi, supra, 901 P.2d at pp. 1003-1004.) Because the challenged statute permitted prosecutors to treat different offenders
Contrary to the reasoning of the plurality opinion in Mohi, however, traditional prosecutorial charging discretion, which includes the discretion not to bring any charges against a particular offender, encompasses decisions how to apply the same law to different offenders, often without any express statutory criteria guiding such decisions. Thus, prosecutors properly may decide that some individuals who have engaged in criminal conduct proscribed by a particular penal statute should not be prosecuted at all. Prosecutors may charge some defendants with a misdemeanor violation of the statute, and others with a felony violation. With regard to some offenders, prosecutors may seek the maximum penalty authorized by the statute, while offering to recommend probation or diversion for other offenders. None of these prosecutorial decisions, unless based upon invidious discrimination or retaliatory motive, ever has been considered to be unconstitutionally arbitrary. Therefore, prosecutorial discretion resulting in the different application of the same law to different offenders does not necessarily violate the requirement of uniform operation of the laws.
In light of prior case authority considering prosecutorial charging discretion, discussed above, we conclude that
VI
Finally, petitioners contend that Proposition 21 is invalid in its entirety because it violates the single-subject rule set forth in
Section 2 contains findings and declarations, which refer to the growing problem of juvenile and gang-related violent crime, the inability of the juvenile justice system to protect the public adequately from violent juvenile offenders, the goal of devoting fewer resources of the juvenile court to violent offenders and more to those offenders who can be rehabilitated, the desirability of eliminating confidentiality in some juvenile proceedings in order to hold juvenile offenders more accountable for their actions, and the need to increase penalties for gang-related felonies. (Ballot Pamp., supra, text of Prop. 21, p. 119.)
Sections 3 through 13 of the initiative are related to criminal gang activity. (Ballot Pamp., supra, text of Prop. 21, pp. 119-123.) Sections 3 through 10 amend the Street Terrorism Enforcement and Prevention (STEP) Act (
Sections 14 through 17 of Proposition 21 amend portions of the Three Strikes law. (Ballot Pamp., supra, text of Prop. 21, pp. 123-125.) Section 15 alters the list of “violent felonies” (
Sections 18 through 34 of Proposition 21 amend provisions of the Welfare and Institutions Code concerning the juvenile justice system. (Ballot Pamp., supra, text of Prop. 21, pp. 125-131.) In addition to the revisions related to charging minors in criminal court and restricting juvenile court dispositions for certain minors, changes made by these sections include limitations on the confidentiality of juvenile criminal records, restrictions on the prehearing release of minors accused of specified offenses, and revisions to various procedures and evidentiary rules in juvenile wardship proceedings.
Petitioners contend that each of the foregoing subjects addressed by Proposition 21—gang violence, the sentencing of repeat offenders, and juvenile crime—are distinct and unrelated to one another. The unifying theme and purpose of the initiative, according to petitioners, is to create a “safer California.” (Ballot Pamp., supra, text of Prop. 21, § 2, subd. (k), p. 119 [“This act addresses each of these issues with the goal of creating a safer California“].) Petitioners assert that, although the subjects addressed by Proposition 21 might be related to the general goal of reducing crime, such a goal is too broad to satisfy the requirements of the single-subject rule.
“In articulating the proper standard to guide analysis in this context, the governing decisions establish that “[a]n initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are “reasonably germane” to each other,” and to the general purpose or object of the initiative.“” [Citation.] As we recently have explained, “the 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.” [Citation.] Accordingly, we have upheld initiative measures ““which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.” [Citation.]” [Citation.]” (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157 [90 Cal.Rptr.2d 810, 988 P.2d 1089].) The common purpose to which the initiative‘s various provisions relate, however, cannot be ““so broad that a virtually unlimited array of provisions could be considered germane thereto and joined in this proposition, essentially obliterating the constitutional requirement.” [Citation.]” (Id. at p. 1162.)
As Proposition 21 itself reveals, the purpose of the measure is narrower than that identified by petitioners. The general object of the initiative is to address the problem of violent crime committed by juveniles
Addressing the problem of juvenile crime and gang-related crime properly can be considered the common purpose of Proposition 21. Although, as petitioners assert, juvenile crime is not coterminous with violent gang crime, a significant portion of criminal gang activity is undertaken by juveniles. A recent report issued by the United States Department of Justice indicates that in 1998, approximately 40 percent of all gang members were under the age of 18 years. (Off. of Juvenile Justice and Delinquency Prevention, 1998 Nat. Youth Gang Survey (Nov. 2000) pp. 14-15 <http://virlib.ncjrs.org/JuvenileJustice.asp> [as of Feb. 28, 2002].) Thus, it would be difficult to attempt to combat the problem of juvenile crime without also considering gang-related crime; conversely, measures to address gang-related crime without dealing with juveniles involved in criminal activity could prove inadequate. Accordingly, Proposition 21 contains provisions that impose harsher penalties both for gang-related crimes and for serious crimes committed by juveniles. In addition, the initiative alters aspects of the juvenile justice system in order to render certain minors more accountable for serious crimes (including gang-related crimes), for example by authorizing prosecution of these minors in criminal court. Thus, the provisions of Proposition 21 that change laws regarding gang-related crime and the juvenile justice system are reasonably germane to each other and to the initiative‘s common purpose of addressing violent crime committed by juveniles and gangs. This subject or goal clearly is not so broad that an unlimited array of provisions could be considered relevant thereto. Indeed, as the People emрhasized at oral argument, in previous decisions we have upheld initiatives containing various provisions related to even broader goals in the criminal justice system. (E.g., Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 [276 Cal.Rptr. 326, 801 P.2d 1077] [promoting the rights of actual and potential crime victims]; Brosnahan v. Brown (1982) 32 Cal.3d 236, 247 [186 Cal.Rptr. 30, 651 P.2d 274] [strengthening procedural and substantive safeguards for victims in the criminal justice system].)
As described above, Proposition 21 added a number of crimes to the list of violent and serious felonies that qualify as strikes under the Three Strikes law.11 The violent felonies now qualifying as strikes under the measure include robbery; kidnapping; assault with intent to commit mayhem, rape, sodomy, or oral copulation; carjacking; extortion or threats to victims or witnesses in connection with gang activity; first degree burglary; and the use of a firearm in connection with the commission of specified felonies. (
Although some of these crimes, at first blush, might not bear an obvious relationship to juvenile or gang offenders, upon closer scrutiny we cannot properly conclude that they are not reasonably related to the goal of the initiative. For example, assault with a deadly weapon and burglary constitute crimes that commonly are committed by street gangs. In 1998, 53 percent of local jurisdictions nationwide reported that youth gang members often or sometimes used firearms in assault crimes. (Off. of Juvenile Justice and Delinquency Prevention, 1998 Nat. Youth Gang Survey, supra, at p. 32.) In the western region of the nation (including California), 27 percent of jurisdictions reported that youth gang members often used firearms in assault crimes; 35 percent reported that such persons sometimes used firearms in assault crimes. (Ibid.) Similarly, 58 percent of jurisdictions reported that “most/all” or “some” youth gang members in their region committed burglaries. (Id. at p. 31.)
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 аnd/or juvenile offenders and thus bear a reasonable and commonsense relationship to the purpose of the initiative. We are not confronted with an initiative that purports to address juvenile and gang-related crime, but that also contains a few provisions that relate solely to adults who are not members of gangs, such as an amendment to the Three Strikes law that would affect only a defendant who, as an adult, previously had been convicted of a strike unrelated to gang activity. The circumstance that the Three Strikes provisions affect adults in addition to juveniles and gang members does not mean that these provisions are not reasonably germane to the purpose of the initiative.
Furthermore, certain juveniles in wardship proceedings who are found to have committed violent or serious felonies within the meaning of the Three Strikes law can accumulate strike priors that result in enhanced sentences in future criminal prosecutions. (
Thus, the list of violent and serious felonies contained in the Three Strikes law bears both a topical and a functional relationship to provisions regarding juvenile crime. Revising the list of violent and serious felonies to add crimes for which juveniles and gang members can receive increased penalties is reasonably germane to the initiative‘s general purpose of addressing juvenile and gang-related crime. In addition, changing the lock-in date (that is, the effective date of relevant statutes) for determining the existence of strikes is necessary to give effect to this list of violent and serious felonies as revised by Proposition 21. “[I]t is well established that an initiative may have ‘collateral effects’ without violating the single-subject rule. [Citations.]” (Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 254-255 [279 Cal.Rptr. 325, 806 P.2d 1360].) Thus, despite the collateral effects of these provisions upon adults who are not gang members, and
Petitioners further contend that Proposition 21 violates the single-subject rule because voters were not adequately informed of the changes to the Three Strikes law effected by Proposition 21, or of the circumstance that these changes concerned laws enacted through prior initiative measures. According to petitioners, nothing in the title, findings, declarations, or ballot pamphlet arguments mention this “major revision” to the Three Strikes law. Petitioners contend that this revision includes provisions that relate solely to adult offenders who are not members of gangs, that the revision therefore is unrelated to the purpose of Proposition 21, and that voters thus were likely to be confused regarding the effect of the initiative.
Petitioners’ claim of voter confusion is refuted by the materials in the ballot pamphlet presented to the voters. The official summary of Proposition 21 prepared by the Attorney General, as well as the analysis of the measure by the Legislative Analyst, clearly and prominently refer to the proposed changes to the Three Strikes law. Thus, the Attorney General‘s summary states that Proposition 21 “[d]esignates additional crimes as violent and serious felonies, thereby making offenders subject to longer sentences.” (Ballot Pamp., supra, official title and summary of Prop. 21, p. 44.) The Legislative Analyst‘s summary states in part: “This measure makes various changes to laws specifically related to the treatment of juvenile offenders. In addition, it changes laws for juveniles and adults who are gang-related offenders, and those who commit violent and serious crimes. Specifically, it: [¶] . . . [¶] . . . Increases criminal penalties for certain serious and violent offenses.” (Id., analysis of Prop. 21 by Legis. Analyst, p. 45, italics added.) The Legislative Analyst then describes in greater detail each of the changes proposed by Proposition 21. In a separate section titled “Serious and Violent Felony Offenses,” the Legislative Analyst describes the general effect of the Three Strikes law, as well as the proposed revisions that would be made by the initiative: “This measure revises the lists of specific crimes defined as serious or violent offenses, thus making most of them subject to the longer
“We must assume the voters duly considered and comprehended these materials. [Citations.]” (Raven v. Deukmejian, supra, 52 Cal.3d 336, 349.) Accordingly, we find no indication that the voters were unaware that Proposition 21 amended the list of serious and violent felonies for which longer sentences may be imposed.
In a related argument, several amici curiae13 contend that Proposition 21 violates the single-subject rule because voters were not informed that the foregoing revisions to the Three Strikes law amended statutes adopted through prior initiative measures. Amici curiae contend that, because these statutes can be amended only by a two-thirds vote of the Legislature or by another initiative measure (see
Lastly, petitioners contend that Proposition 21 violates the single-subject rule because section 707(d), as amended by the initiative, effected a reallocation of judicial power to the executive branch. Such a transfer of power constitutes a single subject within the meaning of article II, section 8(d), petitioners contend, and therefore should have been submitted to the voters in a single initiative. Petitioners rely upon Senate of the State of Cal. v. Jones, supra, 21 Cal.4th 1142, in which we held that an initiative violated the single-subject rule where it would have (1) changed laws regarding the compensation of state officers and (2) transferred the power of reapportionment from the Legislature to this court. Our decision reasoned that the proposal to transfer the power of reapportionment from the Legislature, where it traditionally had resided, to the Supreme Court, involved “a most fundamental and far-reaching change in the law” that “clearly represent[ed] a separate ‘subject’ within the meaning of the single-subject rule upon which
As we have explained, however, the various provisions of Proposition 21, including the provision authorizing prosecutors to file charges against certain minors directly in criminal court, are reasonably germane to the common purpose of reducing gang-related and juvenile crime. Including such a relevant provision in an initiative addressing this single subject is not likely to confuse the voters or obscure the electorate‘s intent. Moreover, conferring upon the prosecutor the discretion to pursue charges against a minor in criminal court does not comprise “a most fundamental and far-reaching change in the law” that clearly represents a single subject upon which a clear expression of the voters’ intent is essential. (Senate of the State of Cal. v. Jones, supra, 21 Cal.4th at pp. 1167-1168.) As established above, prosecutors traditionally have exercised charging discretion with regard to minors accused of criminal conduct, and such prosecutorial decisions often have determined whether the accusations were adjudicated in juvenile court or criminal court. Incrementally expanding such discretion to include the authority to file charges in criminal court under the circumstances set forth in section 707(d) does not reallocate the judicial power, nor does it accomplish such a fundamental change in the law that this provision must be considered a single subject that can be submitted to the electorate only as an individual measure, without the other related provisions of Proposition 21.14 All these provisions are germane to the initiative‘s common purpose of addressing gang-related and juvenilе crime, and satisfy the requirements of the single-subject rule set forth in
The judgment of the Court of Appeal is reversed.
Baxter, J., Chin, J., and Brown, J., concurred.
WERDEGAR, J. — I concur in the judgment and, in all but one respect, in the majority opinion‘s reasoning. I write separately to explain my reasons for agreeing that Proposition 21 does not violate the single-subject limitation imposed on initiative measures by article II, section 8, subdivision (d) of the California Constitution.
As the majority explains (maj. opn., ante, at p. 576), the problems of violent gang crime and juvenile crime are so closely interrelated that they can reasonably be considered the common subject Proposition 21 seeks to address. The difficulty, in terms of the single-subject rule, comes with those provisions changing the “Three Strikes” law‘s “lock-in” date (
By Proposition 21, the voters added to the lists in sections 1192.7 and 667.5 certain offenses clearly related to gangs and/or juvenile crime. Newly designated as serious felonies under section 1192.7 were, for example, felonies committed in promotion of a pattern of criminal gang activity (id., subd. (c)(28)), shooting from a vehicle or at an inhabited dwelling or vehicle (id., subd. (c)(33), (36)), intimidation of witnesses (id., subd. (c)(37)), and making criminal threats (id., subd. (c)(38)). Newly designated as violent felonies under section 667.5 were, for example, extortion in promotion of criminal gang activity (id., subd. (c)(19)) and threatening victims or witnesses in promotion of criminal gang activity (id., subd. (c)(20)).
Qualifying these felonies as “strikes,” so as to impose greater punishment on those who repeatedly committed such offenses, was a measure reasonably germane to Proposition 21‘s purpose of deterring gang and juvenile violence. Adding to the lists in sections 667.5 and 1192.7 would not, by itself, accomplish that task, because the cross-references in the Three Strikes law were statutorily frozen as of June 30, 1993. (See
As the majority recognizes (maj. opn., ante, at pp. 578-579), that an initiative measure has collateral effects outside its subject area does not put the measure in violation of the single-subject rule. (Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 254-255 [279 Cal.Rptr. 325, 806 P.2d 1360]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 230 [149 Cal.Rptr. 239, 583 P.2d 1281].) That some offenses not particularly related to juvenile and gang violence became strikes by virtue of Proposition 21‘s change in the lock-in date, therefore, would not invalidate the measure under the single-subject rule. For this reason, we need not determine whether assault with intent to commit rape, mayhem, sodomy, or oral copulation (
Of the offenses that were added to sections 1192.7 or 667.5 by Proposition 21, a few are of doubtful germaneness to the initiative‘s gang and juvenile violence subject matter. In particular, assault with a deadly weapon (
On the other hand, I do not believe that the inclusion of these very few doubtfully germane provisions in a broad and complex measure addressing juvenile and gang violence should be deemed a separate “subject” for purposes of article II, section 8, subdivision (d) of the California Constitution. The single-subject rule “should not be interpreted in an unduly narrow or restrictive fashion that would preclude the use of the initiative process to accomplish comprehensive, broad-based reform in a particular area of public concern.” (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157 [90 Cal.Rptr.2d 810, 988 P.2d 1089].) As shown above, the vast majority of offenses qualifying as strikes because of Proposition 21 either were closely related to the measure‘s gang and juvenile violence subject or qualify as
For this reason, I agree with the majority that Proposition 21 does not violate our Constitution‘s single-subject limitation on initiative measures.
MORENO, J. — I concur in parts I through V of the majority opinion and concur in the result. But as explained below, I take issue with much of the majority‘s analysis of the single-subject rule and with the way this court has defined the single-subject rule in prior case law.
I
On the March 7, 2000 ballot on which Proposition 21 appeared, there were 17 initiatives and one referendum, including complex and important matters involving election reform, limits on same-sex marriages, voting requirements for school bonds, and approval of Indian gaming compacts. The texts of the proposed laws took 56 double-columned pages of small (9 point) type. The ballot summaries and arguments were 78 pages long. It is doubtful that the average judge or lawyer, let alone the average layperson, comprehended all the material within these pages.
Although many of the reforms suggested to reduce the volume and complexity of the legislative choices faced by voters are beyond the scope of this court‘s power to implement, there is one measure already available to us: the rigorous enforcement of the single-subject rule. It is unlikely that the drafters of the rule in 1948, when there were only eight propositions on the ballot, could have envisioned the initiative explosion that was to occur 40 and 50 years later. But their purpose was clearly to create a more manageable initiative process suitable for the average voter with limited time and resources. The ballot argument in favor of the single-subject rule stated that one of the principal reasons for the single-subject rule is to achieve “simplification and clarification of issues presented to the voters.” (Ballot Pamp.,
Moreover, as we recognized in Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1160 [90 Cal.Rptr.2d 810, 988 P.2d 1089], the single-subject rule was also designed to prevent “‘an unnatural combination of provisions . . . dealing with more than one subject“’ [citations] that have been joined together simply for improper tactical purposes.” In other words, the single-subject rule was intended to discourage what has been called “logrolling.” (See Minger, Putting the “Single” Back in the Single-Subject Rule: A Proposal for Initiative Reform in California (1991) 24 U.C. Davis L.Rev. 879.) Jones itself illustrates this type of mischief: a presumably popular measure, reduction of legislative salaries, was conjoined with a less popular measure, shifting reapportionment from the Legislature to this court. The single-subject rule was designed in part to ensure that each legislative measure succeeds or fails on its own merits.
Unfortunately, this court has generally not interpreted the single-subject requirement to accomplish these basic purposes. In our first case to consider the single-subject rule, Perry v. Jordan (1949) 34 Cal.2d 87 [207 P.2d 47], this court ignored the language of the ballot argument quoted above. Instead it assumed, without explanation, that the single-subject rule for initiatives should be defined in the same manner as the single-subject requirement imposed on legislation passed by the Legislature, found at the time in
The Perry court thus disregarded the ballot argument‘s specific concern with avoiding information overload and voter confusion, and instead grafted the single-subject rule for the Legislature onto the single-subject requirement for initiatives. But the differences between the initiative and legislative
Unfortunately, our subsequent cases have uncritically followed Perry v. Jordan, employing a liberally interpreted “reasonably germane” test rather than a test designed, as the ballot argument to the single-subject rule states, to “eliminate[] the possibility” of voter confusion caused when “improper emphasis is placed upon one feature and the remaining features [are] ignored.” (Ballot Pamp., proposed amends to
In contrast, the Florida Supreme Court, for example, has been rigorous in its enforcement of the single-subject requirement as it pertains to voter initiatives that amend the Florida Constitution. (See Fla. Const., art. XI, § 3 [any constitutional revision or amendment by the electorate “shall embrace but one subject and matter directly connected therewith“].) In the seminal case of Fine v. Firestone (Fla. 1984) 448 So.2d 984, the court determined that the single-subject rule for constitutional initiatives should be interpreted more strictly than a comparable single-subject requirement imposed on the Legislature, for reasons similar to those discussed above. The court stated the focus of its inquiry as one of determining whether a proposed amendment “has a logical and natural oneness of purpose,” considering “whether the proposal affects [separate] function[s] of government” and how “the proposal affects a section of the constitution.” (Id. at p. 990.) Moreover, the court has also rigorously enforced Florida Statutes section 101.161, which requires the chief purpose of any constitutional amendment submitted to the voters to be clearly contained in an explanatory statement “not exceeding 75 words in length.” (See Advisory Opin. to Atty. Gen. re Pub. Educ. (Fla. 2000) 778 So.2d 888, 892.) The Florida Supreme Court has accordingly invalidated
While the Florida Supreme Court‘s interpretation of its own single-subject rule may be somewhat overly stringent for California, some kind of reasonable middle ground between that court‘s rigor and this court‘s laxity seems in order. To be sure, there are inherent conceptual difficulties in formulating the proper constitutional standard for enforcing the single-subject requirement. As commentators have pointed out, the term “subject” is problematic to define with any precision because almost any two legislative measures may be considered part of the same subject if that subject is defined with sufficient abstraction. (See Lowenstein, California Initiatives and the Single Subject Rule (1983) 30 UCLA L.Rev. 936, 938-942 (Lowenstein).) But our task is made simpler if the rule‘s purpose of avoiding voter confusion and logrolling is kept in mind. Some have suggested that a provision is reasonably germane to the main subject of the initiative if it can be surmised that the public would consider it to be. (Uelman, Handling Hot Potatoes: Judicial Review of California Initiatives after Senate v. Jones (2001) 41 Santa Clara L.Rev. 999, 1009-1010; Lowenstein, supra, 30 UCLA L.Rev. at p. 973.) A variation on this formulation proposed by the California Commission on Campaign Financing is whether a “reasonable voter” would be “surprised” to learn that a specific provision being challenged was included in the initiative under question. (Cal. Com. on Campaign Financing Democracy by Initiative: Shaping California‘s Fourth Branch of Government (1992) p. 330, fn. 97.) Moreover, as has been recognized, the single subject of the initiative must be expressed in the initiative‘s title. (See Perry v. Jordan, supra, 34 Cal.2d at p. 93; see also California Trial Lawyers Assn. v. Eu (1988) 200 Cal.App.3d 351, 358 [245 Cal.Rptr. 916].) Thus, at the very least, an initiative should not pass muster under the single-subject rule unless its provisions are reasonably encompassed within the title and summary of the initiative. The inquiry is roughly analogous to a court‘s inquiry into whether a party was unfairly surprised by a provision in a contract of adhesion, rendering that provision unconscionable. (See A & M Produce Co. v. FMCCorp. (1982) 135 Cal.App.3d 473, 490-491 [186 Cal.Rptr. 114].) Moreover, the subject encompassed by the title and summary should be reasonably specific, not a broad, generic subject such as crime or public disclosure. (See Chemical Specialties Manufactures Assn., Inc. v. Deukmejian (1991) 227 Cal.App.3d 663, 670-671 [278 Cal.Rptr. 128].)
California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d 351, illustrates the application of this test. There, an initiative that sought to establish a system of no-fault insurance with the purpose of lowering insurance rates also had a provision, section 8, guaranteeing to insurers and various other groups the same right to make campaign contributions as is given generally, and provided that state officials receiving such contributions would not be disqualified from “‘participating in any decision affecting the interest of the donor.“’ (Id. at p. 356.) As the court stated: “In our view, section 8 of the initiative is a paradigm of the potentially deceptive combinations of unrelated provisions at which the constitutional limitation on the scope of initiatives is aimed. It is located . . . near the middle of a 120 page document, and consists of two brief paragraphs which bear no connection to what precedes or follows. . . . [¶] The significant threat that voters will be misled as to the breadth of the initiative is heightened by the absence of any reference to section 8 in the Attorney General‘s title аnd summary, or in the introductory statement of findings and purpose in the initiative itself. . . . [N]ot only is there a lack of any reasonably discernible nexus between the stated object of the initiative and the campaign spending and conflict of interest provisions of section 8, but the title and various descriptions of the initiative‘s contents give no clue that any such provisions are buried within. These flaws are fatal.” (Id. at pp. 360-361.)
Finally, in addition to the test discussed above, an initiative would pass muster under the single-subject rule if it were “functionally related in furtherance of a common underlying purpose.” (Schmitz v. Younger, supra, 21 Cal.3d at p. 100 (dis. opn. of Manuel, J.).) In Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 230-231 [149 Cal.Rptr. 239, 583 P.2d 1281], in which Proposition 13 was upheld as constitutional, this test was employed along with the reasonably-germane test. (See also Brosnahan v. Eu (1982) 31 Cal.3d 1, 9 [181 Cal.Rptr. 100, 641 P.2d 200] (dis. opn. of Mosk J.) [advocating adoption of the functionally-related test].) The functionally-related test would require that an initiative‘s various measures be “reasonably interrelated and interdependent, forming an interlocking ‘package‘” designed to accomplish the initiative‘s purpose. (Amador Valley, supra, 22 Cal.3d at p. 231.)
II
With these principles in mind, I turn to Proposition 21. I agree that the juvenile justice and gang-related provisions are reasonably germane to the single subject of preventing juvenile crime. The gang-related provisions would be popularly understood to be germane to the subject of juvenile crime since gang-related crime is often juvenile crime. This single subject is appropriately expressed in the title given by the Attorney General—“Juvenile Crime. Initiative Statute.” (Ballot Pamp., Primary Elec. (Mar. 7, 2000) p. 44.) It is also expressed in the title given by the drafters of the initiative, the “Gang Violence and Juvenile Crime Prevention Act of 1998.” (Id. at p. 119.) Moreover, these interrelated subjects are reasonably specific.
The third part of Proposition 21, concerning the amendment of the “Three Strikes” law by adding to the list of serious and violent felonies found in
Moreover, the “significant threat that voters [were] misled as to the breadth of the initiative [was] heightened by the absence of any refеrence to [the provision] in the Attorney General‘s title and summary, or in the introductory statement of findings and purpose in the initiative itself.” (California Trial Lawyers Assn. v. Eu, supra, 200 Cal.App.3d at p. 361.) Nothing in the title of Proposition 21 would have placed voters on notice that it would be amending the Three Strikes law, nor that some of the amendments would have only an incidental connection with juvenile or gang-related crime. Nor do the arguments for and against Proposition 21 contain any mention of these provisions. (Ballot Pamp., Primary Elec. (Mar. 7, 2000) pp. 48-49.) Likewise, the findings and declarations contained in section 2, subdivision (d) of the law make no mention of these amendments,
To counter these arguments, the majority point to the more extensive description of the initiative in the Legislative Analyst‘s summary and state, “‘We must assume the voters duly considered and comprehended these materials.“’ (Maj. opn., ante, at p. 580.) But while it is to be hoped that voters carefully study their ballot guides, the realistic premise behind the single-subject rule is that many voters do not, and the ballot measures should be simple enough to be fairly well described in the title and summary. The less rigorously we enforce the single-subject rule, the more we are compelled to rely on implausible assumptions about voters’ understanding of a ballot measure‘s intricacies.
This lack of notice to voters is especially troublesome because the Three Strikes law is itself a substantial and controversial piece of legislation, the amendment of which merits the careful attention of the voters. I note that there is currently circulating an initiative to amend the Three Strikes law so as to narrow the list of violent and serious felonies that will count as strikes. (See text of proposed initiative for Gen. Elec. Nov. 5, 2002, entitled “Three Strikes” Law. Limitation to Violent and Serious Felonies. Initiative Statute (Cal. Sec. of State, 2002 Initiative Update <http.www.ss.ca.gov/elections/elections_j.htm> [as of Feb. 28, 2002].) There is therefore cause for concern that the amendments to the controversial Three Strikes law were tacked on to a popular anti-juvenile-crime initiative as a form of improper logrolling—a practice the single-subject rule was designed to prevent.
Nonetheless, I concur in the result because I agree that there is a functional relationship between the juvenile justice provisions and the amendment of
In other words, a critical determination in the juvenile justice system—whether or not a minor will be committed to the Youth Authority or to prison—depends in part on the nature of the crimes defined by
KENNARD, J., Dissenting — Historically, in California the decision whether to grant a district attorney‘s request that a minor be prosecuted in adult court instead of juvenile court has been a function of the judiciary, a neutral body. In 2000, however, the voters of this state enacted Proposition 21, an initiative measure that among other matters grants a prosecutor arbitrary and virtually unlimited discretion to decide whether a minor should be tried in juvenile or adult court. There is no hearing, and no right to counsel. No standards guide the exercise of discretion. There is no judicial review. This last omission is fatal, for by depriving the judiciary of any role in making or reviewing the decision, this portion of Proposition 21 eliminates an essential check to arbitrary executive power, and thus offends the principle of separation of powers embodied in the California Constitution.
I
The California Constitution expressly provides for the separation of governmental powers among the three branches of state government. (
““‘[T]he separation of powers principle does not command ‘a hermetic sealing off of the three branches of Government from one another.’ ““” (Obrien v. Jones, supra, 23 Cal.4th at p. 48, quoting In re Attorney Discipline System (1998) 19 Cal.4th 582, 602 [79 Cal.Rptr.2d 836, 967 P.2d 49].) It is expressed, instead, in a system of checks and balances intended to prevent any branch from attaining arbitrary or inordinate power. This court in Superior Court v. County of Mendocino, supra, 13 Cal.4th at pages 52-53, stated: “Although the language of California Constitution article III, section 3, may suggest a sharp demarcation between the operations of the three branches of government, California decisions long have recognized that, in reality, the separation of powers doctrine “‘does not mean that the three departments of our government are not in many respects mutually dependent“’ [citation] . . . . Indeed, upon brief reflection, the substantial interrelatedness of the three branсhes’ actions is apparent and commonplace. . . . Such interrelationship, of course, lies at the heart of the constitutional theory of ‘checks and balances’ that the separation of powers doctrine is intended to serve.”
The charging power of the district attorney, which the majority cites as an exclusive executive power, illustrates the point. The legislative branch defines those crimes that can be charged, the executive branch decides what crimes to charge, and the judicial branch decides whether to sustain those charges. Before the electorate enacted Proposition 21, a similar system of checks and balances protected the decision whether a minor should be prosecuted as a juvenile or as an adult. Most actions against juveniles had to begin in the juvenile court. (See
Proposition 21 seeks to eliminate the required checks and balances. It amended
The juvenile court system and the adult criminal courts serve fundamentally different goals. The punishment for serious crimes tried in the criminal courts is imprisonment, and “the purpose of imprisonment for crime is punishment.” (
In contrast, the juvenile court system seeks not only to protect the public safety, but also the youthful offender.
The practical consequences are immense. An adult court may sentence a defendant to life imprisonment; a juvenile court cannot impose confinement beyond the age of 25. (
II
Concern with the danger in granting arbitrary power to a person who acts as an advocate, not as an impartial adjudicator, was the underpinning of this court‘s decision in the leading case on separation of powers, People v. Tenorio (1970) 3 Cal.3d 89 [89 Cal.Rptr. 249, 473 P.2d 993]. There, this court overruled People v. Sidener (1962) 58 Cal.2d 645 [25 Cal.Rptr. 697, 375 P.2d 641], which had upheld
We expressed the same concerns in Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [95 Cal.Rptr. 524, 485 P.2d 1140], which held unconstitutional a statute (
This court relied on Tenorio and Esteybar in deciding the companion cases of People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59 [113 Cal.Rptr. 21, 520 P.2d 405] (On Tai Ho) and Sledge v. Superior Court (1974) 11 Cal.3d 70 [113 Cal.Rptr. 28, 520 P.2d 412] (Sledge). On Tai Ho invalidated
Sledge involved a different section of the same drug diversion law.
The majority here, however, relies on Davis v. Municipal Court (1988) 46 Cal.3d 64 [249 Cal.Rptr. 300, 757 P.2d 11] (hereafter Davis), which, like On Tai Ho and Sledge, involved a diversion statute. San Francisco had established a diversion program, but it provided that diversion was possible only for persons charged with misdemeanors. This provision had the effect of giving the district attorney unreviewable discretion, whenever a defendant was charged with a “wobbler” (a crime that can be either a felony or a misdemeanor), to exclude that defendant from diversion by the device of filing the charge as a felony. The Davis majority upheld this practice, distinguishing this court‘s earlier decisions in People v. Tenorio, supra, 3 Cal.3d 93, and later cases on the ground that all of the prior cases concerned prosecutorial action after charges had been filed. (Davis, at p. 82.) The separation of powers doctrine, Davis said, limits only prosecutorial action during the “‘judicial phase‘” of a criminal proceeding. (Id. at p. 85.) The majority here adopts that reasoning, holding that decisions occurring before
Davis is factually distinguishable from this case. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 517 [53 Cal.Rptr.2d 789, 917 P.2d 628], this court noted that Davis involved diversion, and “[t]he design of diversion programs is not historically, or necessarily, a judicial function.” Thus we concluded that Davis was not relevant to the trial court‘s power to strike a prior conviction, a power that has historically been exercised by the judiciary. The same distinction could apply here, for unlike the design of diversion programs, but akin to the power to strike a prior conviction, the decision whether to prosecute a minor in adult or juvenile court has been historically a judicial function. That power has rested exclusively in the hands of the juvenile court from 1915 (see Stats. 1915, ch. 631, § 2, p. 1225), shortly after the Legislature established the juvenile court system in 1909 (see People v. Navarro (1972) 7 Cal.3d 248, 277 [102 Cal.Rptr. 137, 497 P.2d 481]; Juvenile Court Act, Stats. 1909, ch. 133, p. 213), until the voters enacted Proposition 21 in 2000.
Although the result in Davis might be defended on the ground that the prosecutorial action involved did not invade a historically judicial function, its analysis is unsound. Davis reasoned that because a court acquires jurisdiction with the filing of charges, nothing that happens before the filing of charges could constitute an invasion of the judicial powers. Three justices dissented in Davis; in my view, they have the better of the argument. Justice Stanley Mosk disagreed that the separation of powers issue depended on the timing of the prosecutor‘s action. As the author of On Tai Ho, supra, 11 Cal.3d 59, and Sledge, supra, 11 Cal.3d 70, he explained that “those cases turn not on a simple chronological distinction between the ‘charging stage’ of a case and the point at which the case is ‘before the court,’ but rather on the character and consequence of the decision placed in the hands of the district attorney.” (Davis, supra, 46 Cal.3d at p. 90 (dis. opn. of Mosk, J.).) Justice Marcus Kaufman, joined by Justice Edward Panelli, focused on the arbitrary and unreviewable discretion given the district attorney: “[T]he diversion program effectively grants the district attorney unbridled discretion to determine who among those committing wobblers shall be conditionally eligible for diversion and who shall be absolutely ineligible. . . . [¶] . . . [W]hen the executive‘s exercise of the charging function also constitutes the exercise of delegated legislative power, as it does in this case, that power must be circumscribed by ‘suitable safeguards . . . to guide the power‘s use and to protect against misuse’ [citation], or it cannot be upheld.” (Id. at p. 95 (dis. opn. of Kaufman, J.).)
Under the reasoning of Davis, supra, 46 Cal.3d 64, and the majority opinion here, the Legislature (or the electorate by initiative) can effectively abrogate all of our previous decisions on separation of powers. For example, People v. Tenorio, supra, 3 Cal.3d 89, invalidated a law that permitted the prosecutor to veto a court order dismissing a prior conviction, but under the majority‘s reasoning the Legislature could nullify Tenorio by allowing the prosecutor to specify in the charging papers that certain prior conviction allegations will not be subject to dismissal, and by making that decision binding on the court. Another separation of powers decision, Esteybar v. Municipal Court, supra, 5 Cal.3d 119, said that principle was violated by a law requiring prosecutorial consent before a magistrate could order that a crime be prosecuted as a misdemeanor; under the majority‘s holding, the Legislature could simply authorize the prosecutor, in the charging papers, to specify whether the magistrate could treat the offense as a misdemeanor. A third decision, On Tai Ho, supra, 11 Cal.3d 59, held invalid a statute requiring prosecutorial consent to diversion; under the majority‘s holding the Legislature could simply prohibit diversion unless the prosecutor, in the charging papers, has consented. Indeed, the rationale of Davis and the majority here would permit the enactment of a statute that authorized the prosecutor to make binding and unreviewable determinations, before or at the time of filing charges, as to what judge will hear the case, what еvidence will be admitted, and what sentence imposed if the defendant is convicted, thus effectively abrogating the function of the separation of powers doctrine.
III
The majority asserts that because the Legislature has the power to eliminate entirely the jurisdiction of the juvenile court, a statute that confers authority on the prosecutor to bypass that jurisdiction does not usurp an exclusive judicial authority. (Maj. opn., ante, at p. 560.) This is a familiar argument, because it has been repeatedly raised and rejected in separation of powers cases. In Esteybar v. Municipal Court, supra, 5 Cal.3d 119, the People argued that because the Legislature was not required to give magistrates the power to determine that a charge should be prosecuted as a misdemeanor, the Legislature could condition this power on the consent of the prosecutor. We responded: “[This] argument[] . . . [is] not persuasive. . . . [T]he fact that a particular power has been conferred on a magistrate by statute does not prevent the exercise of that power from being a judicial act for purposes of the doctrine of separation of powers.” (Id. at pp. 126-127; see People v. Tenorio, supra, 3 Cal.3d at p. 94.) And in People v. Superior Court (Romero), supra, 13 Cal.4th at page 516, we observed that even though the Legislature had the power to abolish judicial discretion to strike a prior conviction allegation, that did not give it the authority to condition that power on the consent of the district attorney.
IV
In my view, Proposition 21 unconstitutionally invaded a judicial function, for the following reasons:
First, almost from the inception of the juvenile court system in California, the decision whether a minor is unfit for juvenile court proceedings has been a judicial function. History alone may not be conclusive (see maj. opn., ante, at pp. 557-558), but it is important, for the division of authority among the three coequal branches of government is largely a product of history.
Second, the decision whether to prosecute in juvenile or adult court is critical, and thus deserving of the due process protections of a judicial proceeding. In Kent v. United States (1966) 383 U.S. 541 [86 S.Ct. 1045, 16 L.Ed.2d 84], the United States Supreme Court reviewed an arbitrary ruling of the District of Columbia juvenile court to waive jurisdiction and permit trial in adult court. Overturning that ruling, the high court repeatedly described the decision whether a minor should be tried as a juvenile or an adult as “critically important” (id. at pp. 553, 556, 558, 560, 561 [86 S.Ct. at pp. 1053, 1055, 1056, 1057]), one of “tremendous consequence” (id. at p. 554 [86 S.Ct. at pp. 1053-1054]), and thus deserving and requiring the protection of due process. (Ibid.) In In re Harris (1967) 67 Cal.2d 876, 878 [64 Cal.Rptr. 319, 434 P.2d 615], noted: “In Kent v. United States[, supra,] 383 U.S. 541, [553], the Supreme Court held that a juvenile court‘s direction that a minor be held for trial as an adult must be based on a hearing that conforms to ‘the basic requirements of due process and fairness. . . .“’ People v. Chi Ko Wong (1976) 18 Cal.3d 698, 718 [135 Cal.Rptr. 392, 557 P.2d 976], said: “It cannot be denied that the process of certifying a juvenile for criminal proceedings is a critically important action affecting vitally important rights of the juvenile. . . . The certification process must . . . be attended by minimum requirements of due process and fair treatment as dictated by the Fourteenth Amendment.” (See Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 775 [211 Cal.Rptr. 869].)
These cases do not suggest that the critically important decision whether to try the minor in adult or juvenile court should receive due process protections only if it is made after charges have been filed. Yet if the same decision, equally important and consequential, is made before charges are filed, then, according to the majority, the prosecutor has unreviewable discretion, subject only to the most minimal of constitutional constraints prohibiting invidious discrimination or vindictive or retaliatory prosecution. (Maj. opn., ante, at pp. 570-571.) There is no judicial review to correct
Third, at the time of filing charges, the district attorney‘s office has limited information—the details of the particular crime, and the minor‘s prior criminal history, if any. It may not know the minor‘s family, school, or community history, all matters that are important in deciding whether the minor is suitable for juvenile court treatment. It may not know the minor‘s view of the matter, and probably has not heard from the minor‘s counsel, who has yet to be appointed. There has been no hearing, no testimony, and no receipt of evidence. As a result, the prosecutor, acting with limited information, may err in the decision, and although an error in submitting the minor to juvenile court jurisdiction is correctable, one in assigning the minor to adult court is not.
V
The separation of powers doctrine does not require that the prosecutor take no part in the decision whether a minor should be tried in adult or juvenile court. Because that doctrine envisions that each branch of government acts as a check upon the power of the other branches, the doctrine of separation of powers would be satisfied if the prosecutor‘s initial decision were subject to judicial review. Tenorio, in striking down a statute requiring approval of the prosecutor to dismissal of a prior conviction allegation, repeatedly emphasized the absence of judicial review, suggesting that judicial review would have saved the statute. (See People v. Tenorio, supra, 3 Cal.3d 89, 93-95.) This was confirmed in On Tai Ho, supra, 11 Cal.3d 59, and Sledge, supra, 11 Cal.3d 70, which concerned parallel provisions giving prosecutors power to disapprove drug diversion—On Tai Ho held invalid a provision that did not provide for judicial review, Sledge upheld a similar provision because it provided for judicial review. As the majority acknowledges, court decisions in other states upholding laws similar to section 707, subdivision (d) in all but one instance involved laws permitting judicial review. (See cases cited in maj. opn., ante, at pp. 561-562.)
VI
In conclusion, the validity of Proposition 21‘s provision giving the prosecutor power to decide whether to prosecute a minor in adult court or juvenile court turns not on the timing of the prosecutor‘s decision, but “the substance of the power and the effect of its exercise.” (On Tai Ho, supra, 11 Cal.3d at p. 68.) The power, as I have explained, is unrestrained by legislative standards and susceptible to arbitrary exercise; the effect is profound,
The petition of real party in interest for a rehearing was denied April 17, 2002, and the opinion was modified to read as printed above.