PEOPLE v. VALENCIA

Amicus Curiae Brief of California Attorneys for Criminal Justice

Cal.December 30, 2015

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, DAVID VALENCIA, Respondent No. 8223825 Petitioner / APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE FOR PERMISSION TO APPEAR AS AMICUS CURIAEON BEHALF OF PETITIONER —o0o0- BRIEF IN SUPPORT OF PETITIONER 7 RICHARD SUCH SUPREME COURT PILEDAttorney at Law No. 46022 1120 College Avenue Palo Alto, California 94306 DEC $6 2015 (415) 495-3119 rsuch@fdap.org Frank A. MeGure Clerk JOHNT. PHILIPSBORN, Deputy Attorney at Law No. 83944 Law Offices ofJ T Philipsborn 507 Polk St Ste 350 San Francisco, CA 94102 Chair, Amicus Committee Attorneys for Amicus Curiae CALIFORNIA ATTORNEYS FOR CRIMINALJUSTICE Attorneys for Amicus Curiae California Attorneys for Criminal Justice RECEIVED DEC 172015 CLERK SUPREME COURT IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Respondent No. $223825 -vVs- DAVID VALENCIA, Petitioner / APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE FOR PERMISSION TO APPEAR AS AMICUS CURIAEON BEHALF OF PETITIONER —000- BRIEF IN SUPPORT OF PETITIONER RICHARD SUCH Attorney at Law No. 46022 1120 College Avenue Palo Alto, California 94306 (415) 495-3119 rsuch@fdap.org JOHN T. PHILIPSBORN, Attorney at Law No. 83944 Law Offices ofJ T Philipsborn 507 Polk St Ste 350 San Francisco, CA 94102 Chair, Amicus Committee Attorneys for Amicus Curiae CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE Attotneys for Amicus Curiae California Attorneys for Criminal Justice TABLE OF CONTENTS Page TABLE OF CASES uu... cccccecccsscsscccesscstscscesecssesssesssscsscssesssarsestecceseceeees il APPLICATION TO APPEAR AS AMICUS CURIAEooeccccccccccccccccccee.. 1 A. Identification of CACooo.ccscsssccssccsssecescsscccsssccescessceccces 2 B. Statement of Interest OfAMICUS CUFIAE voeeeccccccccccscseececcccecccecee. 3 BRIEF IN SUPPORT OF PETITIONER........cccccsscccececsscessesececccscccccceees 4 QUESTIONS PRESENTED...cccccsscessscssccessscessccccececescceseeeseesecseseasees 4 INTRODUCTION 0... ccccccscccscccsseccessssescsssasecsssesessscssesesucceseccceceseceecees 4 I. THE PLAIN MEANING OF “AS USED THROUGHOUTTHIS CODE” IS THAT THE PROPOSITION 47 DEFINITION OF “UNREASONABLE RISK OF DANGER TO PUBLIC SAFETY” APPLIES TO THE USE OF THE SAME PHRASEIN PROPOSITION 36...........ccccccsscsssscsessesssccsssescssssesssuescecessversteuscesserseecceseeces 7 Ul. THE COURT OF APPEAL FAILED TO FOLLOW THIS COURT’S PRECEDENTS WHEN IT DECIDED THAT THE ELECTORATE DID NOT READ AND UNDERSTAND THE INITIATIVE MEASURE AND, THEREFORE, COULD NOT HAVE INTENDED THATITS PROVISIONS SHOULD BE GIVEN THEIR PLAIN MEANING........ 9 1. The primary purpose ofProposition 36 was not to promote public safety but to reduce third-strike terms for non-violent, non-serious felonies, where it could do so consistent with public safety. oo.ecesseesessscssssscssscsessscsecsesscsscstsssecesessasseees 9 2. The Court of Appeal’s decision fails to follow this Court’s clear and consistent precedents that the electorate is presumed to have read and understood the provisionsofinitiative IMCASUIES, 00... .sccesseeeseesscssssessessevscseeeccseeceessesesseeessneesesseecsssssenseeaees 1] 3. Interpreting “as used throughout this Code” according to its plain meaning and applyingit to section 1170.126 would not result in “absurd” consequences of which the voters were UMAWALE.occccscessceseeccscccssseeesesssesseaesseeessaeeeeescsaeeeesseessseseeeseneeeses 2] CONCLUSION o.oo. cececcscssereecsccesnceesaceensesetesesesescesensessesssuseesseeseecarensees 30 TABLE OF CASES Amador Valley Joint Union High Sch. Dist. v. State Bd. ofEqualization (1978) 22 Cal.3d 208oeeeeleeccecsseeecneeeesseectseeseeseeecesesseeseseneesenseas 18 Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243 we. 15 Brosnahan v. Brown (1982) 32 Cal.3d 236 .......cccsscccccssssseescesseesseneessees 17 Calif. Chamber of Commerce v. Brown (2011) 196 Cal.App.4th 233 .. 18 Calvillo-Silva v. Home Grocery (1998) 19 Cal4th 714 ooo.eeeeees 15 City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47......... 13 Curle v. Superior Court (2001) 24 Cal.4th 1057 ooo... eccsessercceeseees 8 Dayv. City of Fontana (2001) 25 Cal.4th 268 0.00...ceseeseeeeeee 12, 14 Delaney v. Superior Court (1990) 50 Cal.3d 785 oe 12, 14, 15, 19 Dix v. Superior Court (1991) 53 Cal.3d 442 occeeeceseseeecenessneesteeseees 7 Fair Political Practice Com. v. Superior Court (1979) 25 Cal.3d 33 ....... 18 Lungren v. Deukmejian (1988) 45 Cal.3d 727 .....cecsececsseeesien 12, 18, 21 Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal4th 220 ooocscseseeceeeeeccescesseseeseeessseeseseesaeeuees 12, 13, 14, 15, 19 Taxpayers To Limit Campaign Spendingv. Fair Pol. Practices Com. (1990) 51 Cal.3d 744 weeccccccsscssnecesscesesseseeseeseeecsseeeecsaeeeeseseesenseeeaees 18 -ii- White v. Davis (1975) 13 Cal.3d 757 oo.cccccccessecceesseessssessesseseseesesess 12 Wright v. Jordan (1923) 192 Cal. 704 oo... ceccsscececssssseessseceesseseeesenes 17 In re Lance W. (1985) 37 Cal.3d 873 .....cceccscssccsssscecsssseseseesseeessasscssesesees 12 In re Michele D. (2002) 29 Cal.4th 600 oo... cccecccssseccsseneseeessecesesseens 22 People v. Canty (2004) 32 Cal.4th 1266 occeesesesseeteseeeeeneeswee 8 People v. Craft (1986) 41 Cal.3d 554 woecscsssecssessneeseeeseesseesesees 7 People v. Franco (2014) 232 CalApp.4th 831 oo... eeeccsseereceeeeeees 22, 28 People v. Losa (Dec. 19, 2014) 232 Cal.App.4th 78 .......cccceecsseceseeeeeees 28 People v. Osuna (2014) 225 Cal.App.4th 1020 .00...ecscsssrreesesneeee 19 People v. Superior Court (Kaulick) (2013) 215 Cal. App. 4th 1279 ....... 24 People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294 ow... 15 -iii- IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Respondent No. 223825 -Vs- | DAVID VALENCIA, Petitioner / APPLICATION OF CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE TO APPEAR AS AMICUS CURIAE ON BEHALF OF PETITIONER DAVID VALENCIA(RULE 8.520(f)) AND BRIEF IN SUPPORT OF PETITIONER TO: THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, CALIFORNIA SUPREME COURT, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT: California Attorneys for Criminal Justice (hereafter CACJ) apply under California Rules of Court, Rule 8.520(f), to appear as amicus curiae on behalf of petitioner David Valencia. The application is made in compliance with Rule 8.520(f)(2) in that petitioner filed his Reply Brief on the Merits on November 18, 2015. Thus, this briefis filed within 30 days of that brief, and complies with Rule 8.520. A. Identification of CACJ' CACJis a nonprofit California corporation. According to Article IV of its bylaws, CACJ was formedto achievecertain objectives including “to defend the rights ofpersons as guaranteed by the United States Constitution, the Constitution of the State of California and other applicable law.” CACJis administered by a Board of Governorsconsisting of criminal defense lawyers practicing within the State of California. The organization has approximately 2,000 members,primarily criminal defense lawyers practicing before Federal and State courts. These lawyers are employed throughoutthe State both in the public and private sectors. CACYJhas often appeared before this Court, the United States Supreme Court, and the Courts of Appeal in California on issues of importance to its membership. CACJ’s appearance as an amicus curiae before this Court has been recognized in a numberofthe Court’s published decisions. ' The undersigned memberofand attorney for CACJcertifies to this Court that no party involvedin this litigation has tendered any form of compensation, monetary or otherwise, for legal services related to the writing or production ofthis brief, and additionally certifies that no party to this litigation has contributed any monies, services, or other form of donation to assist in the production ofthis brief. 2 B. Statementof interest of amicus curiae CACYhas both a generaland specific interest in the subject matter of this litigation. Our membership, which includes many Public Defenders, represents many prisoners in the State of California who are servingthird- strike sentences for non-violent, non-serious felonies and who have petitioned for re-sentencing under the Three Strikes Reform Act of 2012 (Proposition 36), some ofwhose petitions are pending in the Superior Court and Court ofAppeal and whohaveaninterest in the application to their cases of the definition of “unreasonable risk of dangerto public safety,” which was adopted and madeapplicable “throughoutthis [Penal] Code” by the Reduced Penalties for Some CrimesInitiative (Proposition 47). In summary, CACJ andits legal representatives have the necessary experience andinterest in matters involving representation of prisoners in Proposition 36 re-sentencing petitions to serve this court as amicus curiae. For these reasons, CACJrespectfully asks that this Court grant CACJ permission to appear as amicus curiae on behalf ofpetitioner Valencia. XN Dated: December 14, 2015 iLadbyef RICHARD SURH Attorney for Amicus Curiae CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE JOHN T. PHILIPSBORN Chair, Amicus Committee BRIEF IN SUPPORT OF PETITIONER QUESTION PRESENTED Doesthe definition of “unreasonable risk of danger to public safety”, adoptedas part of the Reduced Penalties for Some CrimesInitiative (Proposition 47, 2014), “as used throughout this Code” (Pen. Code, § 1170.18, subd. (c)) apply to petitions for re-sentencing underthe . Three Strikes Reform Act of 2012 (Proposition 36), as used in Penal Code section 1170.126, subdivision (f)? INTRODUCTION In 2012, the California electorate approved Proposition 36, the Three Strikes Reform Act of 2012, which added section 1170.126 to the Penal Code. That section provides that prisoners serving third-strike, 25-to-life sentences for non-violent, non-serious felonies may petition for re-sentencing to double- the-base-term, second-strike sentences. Subdivision (f) of section 1170.126 provided sentencing courts with discretion to deny re-sentencing in cases of prisoners who pose “an unreasonable risk of dangerto public safety.” The vaguenessofthat phrase and the lack of objective standards in applying it gaverise to different interpretations and wide disparities in the disposition of re-sentencing petitions from county to county and, within counties, from judge to judge. (See Elias, “Voters OK'd Three Strikes Review but Some Counties Balking,” Bakersfield Californian (May 11, 2013) [http://www.bakersfield.com/news/2013/05/12/voters-ok-d-3- strikes-reviews- but-some-counties-balking.html].) It generated numerous appeals which 4 raised questions of abuseofdiscretion in denying petitions and ofwhetherthe immutable facts of a prisoner’s prior record would support a finding of “unreasonable risk” without the showing andanarticulation of a “nexus” between those facts and current dangerousness. Thus, there was an apparent need for a tighter, more objective and, therefore, more uniformly applicable definition of “unreasonablerisk.” That definition was supplied by Proposition 47, the Reduced Penalties for Some CrimesInitiative, of 2014. The general objectives of both Proposition 36 and Proposition 47 were the same: to reduce the populations of overcrowded and mal-functioning prisons and the great public cost of maintaining them by excluding from them persons convicted ofrelatively minor felonies, converting them to misdemeanors, and reducing the penalties for them. Many prisoners serving 25 yearsto life for minor offenses, such as thefts of property worth $950 or less or possession of controlled substances wereeligible for release underthe provisions ofboth Propositions. Persons with prior records of certain violentor serious felonies were ineligible under both Propositions. The ground for denying relief— re-sentencing under Proposition 36 and reduction to misdemeanors under Proposition 47 — were identical: whether or not the convict continued to pose “an unreasonablerisk of dangerto public safety.” But Proposition 47 supplied the well-defined, objective standard for exercise of the court’s discretion which Proposition 36 lacked and madeit applicable “as used throughoutthis Code” (§ 1170.18, subd. (c)), thereby solving the problem of vagueness and nonuniform enforcementthat Proposition 36 created. I. THE PLAIN MEANING OF “AS USED THROUGHOUTTHIS CODE”IS THAT THE PROPOSITION 47 DEFINITION OF “UNREASONABLE RISK OF DANGER TO PUBLIC SAFETY” APPLIES TO THE USE OF THE SAME PHRASEIN PROPOSITION 36. Thereis no need for amicus to elaborate on petitioner’s self-evident contention that, where Penal Codesection 1170. 18, subdivision (), provides “As used throughout this Code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of[specified provisions of section 667]”, the italicized phrase refers to the only other provision ofthe Codein which “unreasonable risk of danger to public safety” appears, section 1170.126, subdivision (f). Otherwise, the phrase would be completely meaningless, and the electorate, in enacting it, would have engagedin an idle act, which it is presumed not to have done. (People v. Craft (1986) 41 Cal.3d 554, 560 [“a statute should not be given a construction that results in rendering oneofits provisions nugatory”]; Dix v. Superior Court (1991) 53 Cal.3d 442, 459 [“Where reasonably possible, we avoid statutory constructions that render particular provisions superfluous or unnecessary”].) In Craft, the Court also said: Central to this case is the meaning of“separate occasions” in subdivision (d) [of section 667.6]. In construing the phrase we rely on well settled principles of statutory construction. A court should “ascertain the intent of the Legislature so as to effectuate 7 the purpose ofthe law.” [Citations. In determining suchintent, the court “turns first to the words themselves for the answer” [citations], giving to them “their ordinary and generally accepted meaning.” ([Citation.] Finally, we keep in mind that “‘[t]he defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’” [Citations.] (Id. at pp. 559-560.) Likewise, in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063, the Court said: “Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we look first to the words ofthe statute, giving the languageits usual, ordinary meaning.Ifthere is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs.” [Citation.] Jfthe Legislature hasprovided an express definition of a term, that definition ordinarily is binding on the courts. [Citations.] Furthermore, we consider portions of a statute in the context ofthe entire statute and the statutory scheme ofwhichitis a part, giving significance to every word, phrase, sentence, and part of an act in pursuance ofthe legislative purpose. [Citation.] (Italics added.) Citing Curle, the Court in People v. Canty (2004) 32 Cal.4th 1266, 1276, said: In interpreting a voter initiative such as Proposition 36 [the Substance Abuse and Crime Prevention Act of2000] , we apply the same principles that govern the construction of a statute. [Citations.] ... Our first task is to examine the language of the statute enacted as an initiative, giving the words their usual, ordinary meaning. [Citations.] Ifthe language is clear and unambiguous, wefollow the plain meaning of the measure. [Citations.] The plain meaningof“as used throughout this Code”in section 1170.18 is that what follows applies “throughout this Code” and, therefore,to section 1170.126. II. THE COURT OF APPEAL FAILED TO FOLLOW THIS COURT’S PRECEDENTS WHENIT DECIDED THAT THE ELECTORATE DID NOT READ AND UNDERSTANDTHEINITIATIVE MEASURE AND, THEREFORE, COULD NOT HAVE INTENDED THAT ITS PROVISIONS SHOULD BE GIVEN THEIR PLAIN MEANING. The Court ofAppeal opinion in this case was based on two propositions (1) that applying Penal Codesection 1170.18, subdivision (c)’s definition of “unreasonablerisk of danger to public safety”to proceedings under Penal Codesection 1170.126 would underminethe public safety purpose of Proposition 36 and was incompatible with Proposition 47’s purpose of providing re-sentencing procedures to modify only certain felonies to misdemeanors(id. at pp. 239-240) and (2) that noneofthe ballot materials in Proposition 47 mentioned any impactonthree strikes offenders seeking re- sentencing under Penal Codesection 1170.126. (Id. at pp. 240-241.) 1. The primary purpose of Proposition 36 was notto promote public safety but to reduce third-strike terms for non-violent, non-serious felonies, whereit could do so consistent with public safety. Onthis first point, although the uncodified section 7 of the Three Strikes Reform Act of 2012 (Proposition 36) provided that “This act is an exercise of the public powerofthe peopleofthe State of California for the protection ofthe health, safety, and welfare of the people ofthe State of California,” the main purposeofthe Act was clearly not to provide for public safety. Rather, its central purpose was to restore the Three Strikes Law toits original purposeby replacing 25-to-life sentences for third-strike sentencesfor non-violent, non-serious felonies, with second-strike sentences, thereby to eliminating what the public regarded as excessive punishment. Its purpose was also to reducethe cost of imprisoning about 3000 of the 8800 persons serving life sentences. (See http://ballotpedia. org/California_ Proposition_36,Changes_in_the_%22Three_Strikes%22_ Law(20 12).) Its “Fiscal Impact,” as summarized by the Legislative Analyst wasthat it would achieve “State savings related to prison and parole operations of $70 million annually on an ongoingbasis, with even higher savings — up to $90 million annually — over the next couple of decades.” (Ibid.) The Arguments in Favor of the proposition in the Voter Guide stated: “Taxpayers could save over $100 million per year — money that can be used to fund schools, fight crime and reducethe state’s deficit.” (Ibid.) Its authors and proponents wished to reassure the public that its safety would not be compromised by the measure. The Arguments in Favorstated: “The Three Strikes law will continue to punish dangerouscareer criminals who commit serious violent crimes — 10 keeping them off the streets for 25 yearsto life” (ibid.), but that clearly was not the main purposeofthe Act. Obviously,the purposeofthe “Safe Neighborhoods and Schools Act” (Proposition 47) was not to increase public safety, either, but to reduce sentencesfor all persons convicted of minor property and drug offenses and also to reduceprison populations and state expenditures. Accordingto the Court of Appeal’s opinion in this case, Proposition 47 “emphasized monetary savings.” (181 Cal.Rptr.3d at p. 240.) Thus, there is no incompatibility whatsoever between the purposes of Proposition 36 and Proposition 47. One proposition achieved those purpose by one means, the other proposition by other means. The provision of Proposition 47, defining the same concept that appears, in the same terms, in Proposition 36, “unreasonablerisk of danger to public safety,” furthers the purposes of both measures to reduce sentences and the cost of imprisonment. 2. The Court of Appeal’s decision fails to follow this Court’s clear and consistent precedents that the electorate is presumed to have read and understood the provisionsof initiative measures. The Court of Appeal’s decision in this case failed to follow the law clearly andconsistently laid down by this Court insofar as it held thatthe plain meaning of the phrase with introduces that concept in subdivision (c) of section 1170.18, “As used throughoutthis Code,”is literally obliterated by the 11 e e fact that the ballot materials provided to the voters in connection with Proposition 47 — not counting thefull text ofthe measure — did not say anything about the application of that definition to re-sentencing under other provisions of the Code, such as section 1170.126. In Day v. City of Fontana (2001) 25 Cal.4th 268, 282, this Court held that “it is of no consequenceherethat the ballot materials did not specifically refer to the act’s applicationin actions against local public entities for nuisance and dangerous condition ofproperty.” In Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 237, the Court said that ballot arguments “are not legal briefs and are not expectedto cite every case the proposition mayaffect.” In Delaney v. Superior Court (1990) 50 Cal.3d 785, 802-803, the Court observed: “The most reasonable inference is that the proponents chose to emphasize(in the limited space available for ballot arguments) what they perceived as the greatest need.” The earliest of these cases had these highly pertinent things to say on the subject: Delaney also relies on the ballot argument in favor of Proposition 5 in 1980, the measurethat created article I, section 2(b). Ballot arguments are accepted sources from which to ascertain the voters’ intent. (In re Lance W. (1985) 37 Cal.3d 873, 888, fn. 8; White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11.) As with the legislative history of section 1070, however, we need not look beyond the language ofthe enactment(article I, section 2(b)) when its language is unambiguous. (Lungren v. Deukmejian [(1988)] 45 Cal.3d 727, 735.) The ballot argument (unlike the legislative history) is, however, at least relevant to determining the 12 voters’ intent. We therefore considerthe ballot argument(set forth in full in the margin) to determine if it demonstrates the voters did not mean whattheysaid. [Fn. omitted.] The repeated referencesin the argumentto confidentiality and the like permit the inference the proponents of the measure intended to protect only confidential information. The same inference may be drawn from the Legislative Analyst’s statement. [Fn. omitted.] The inference, however,is far from compelling. The ballot materials emphasized the need for confidentiality but did not state that only confidential - matters would be protected. The most reasonable inferenceis that the proponents chose to emphasize (in the limited space available for ballot arguments) what they perceived as the greatest need. We cannot conclude that, by emphasizing one purpose, perhaps the primary purpose of the measure, the argument misled voters into thinking confidentiality was the only purpose, especially when the measureitselfmadeclearthat all unpublished information would be protected. Moreover, a possible inference based on the ballot argument is an insufficient basis on which to ignore the unrestricted and unambiguous language of the measureitself. It would bea strained approachto constitutional analysis ifwe were to give more weight to a possible inference in an extrinsic source (a ballot argument) than to a clear statement in the Constitution itself. We decline to do so. [Fn. omitted.] (50 Cal.3d at pp. 802-803 [italics added].) With respect to Proposition 47, whatever the ballot argumentssaid, “the unrestricted and unambiguous language of the measureitself’ — that its definition of “unreasonablerisk of danger to the public safety” applies “throughout this Code” — cannot be ignored. Delaney wascited by the Supreme Court in Santa Clara County Local Transportation Authority v. Guardino, supra, 11 Cal.4th 220, 237: Petitioner next relies on the fact that the ballot argumentin support of Proposition 62 mentioned our decision in [City and County of San Francisco v.| Farrell [(1982)] 32 Cal.3d 47, as a 13 target of the measure, but did not similarly cite [Los Angeles County Transportation Com. v.] Richmond[(1982) 31 Cal.3d 197]. The point is unpersuasivefor several reasons. Ballot argumentsare not legal briefs and are not expected to cite every case the proposition may affect. Here Proposition 62 proposed to make a number of changes in the law oflocal taxation, affecting both general and special taxes, andthe ballot argument did not attempt to list all ofthem. (Cf. Delaney v. Superior Court (1990) 50 Cal.3d 785, 802 [“The most reasonable inference is that the proponents chose to emphasize (in the limited space available for ballot arguments) what they perceived as the greatest need.”].) Nevertheless, the argument did confirm that the measure was intendedto affect all types oflocaltaxes, telling the voters at the outset that “A Yes vote on Proposition 62 gives back yourright to vote on any tax increases proposed by your local governments.” (Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 4, 1986), argument in favor of Proposition 62, p. 42, italics added.) Similarly, the Legislative Analyst told the voters that Proposition 62 “establishes new requirements for the adoption ofnew or higher general and special taxes by local agencies.” (Id., analysis by Legislative Analyst, p. 40, italics added.) The voters therefore had no reason to believe that Proposition 62 would not apply to oneclass of special taxes — those imposedbydistricts without property taxing power. (Italics added.) Similarly, although the ballot arguments in favor of Proposition 47 did not mention Proposition 36, the text of the measure stated clearly that its definition of the dangerousness concept applied “throughout this Code” and thereby affected all determinations of risk of dangerto the public safety. Delaney and Santa Clara Valley Transportation were cited by the Court in Day v. City of Fontana, supra, 25 Cal.4th 268, 278-279, which relied on three additional decisions ofthis Court: Theballot arguments do not compelplaintiff's construction 14 of the statute. Such arguments, of course, “are notlegal briefs and are not expected to cite every case the proposition mayaffect.” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 237; see also Delaney v. Superior Court (1990) 50 Cal.3d 785, 802-803 [The most reasonable inferenceis that the proponents chose to emphasize (in the limited space available for ballot arguments) what they perceived asthe greatest need”}.) Here we may reasonably infer from the ballot arguments that a primary aim of Proposition 213 was to protect insured motorists and to reduce automobile insurancerates. [Citation.] Such arguments, however, did not imply that protection ofinsured motorists was the initiative’s sole aim; nor did they suggest that reductions in automobile insurance premiums would be the initiative’s only effect. Rather, the express language and declared purpose ofthe enactment, as well as the ballot arguments’ broader focus upon the perceived need to reform a system that had rewarded lawbreakersat the expense of responsible, law-abiding citizens [fn. omitted], persuade us that actions such asthe instant one fall within a fair and objective reading of section 3333.4. (See People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 308[refusingto limit the scope ofaninitiative measure based upon the Legislative Analyst’s analysis]; Amwest Surety Ins. Co.v. Wilson (1995) 11 Cal.4th 1243 [Proposition 103 applied to surety insuranceeven thoughtheballot materials had not specifically told voters of that application]; cf. Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 732-733 [rejecting argument that Legislature’s focus on negligence principles supported a limitation of section 847’s immunity provisionsto negligent acts].) (Italics added;see also p. 282.) Likewise, Proposition 47 — like Proposition 36 — and the argumentsin favor had the broad aim of emphasizing the need to “reform a system”of excessive, expensive punishments. One of its decisions, cited by the Court in Day, Amwest Surety Ins. Co. vy. Wilson, supra, 11 Cal.4th 1243, states principles relevantto the present situation. At issue was Proposition 103, an insurance-reform initiative which 15 clearly (by reference to Insurance Codesection 1851) applied to surety insurance. The measure providedthat it could not be amended by the Legislature “except to further its purpose”and by a two-thirds votes. Then the Legislature enacteda bill favored by the insurance industry, Insurance Code section 1861.135, which purported to exempt surety insurance. The organization that drafted the proposition challenged the validity of the statute, while Amwest defended it. The Supreme Court held: Amwest contends that the enactment of section 1861.135 furthers the purposes of Proposition 103 by clarifying whether surety insurance was meantto be included within the ambit of Proposition 103. This was the reason given by the Legislature for amending Proposition 103. ... Butthe Legislature’s action constituted an alteration rather than a clarification ofthe initiative. It was clearpriorto the passage of Proposition 103 that the provisions of chapter 9 regulating insurance rates applied to surety insurance. (§§ 1850.4, 1851.) Proposition 103 fundamentally altered the method of regulating insurance rates set forth in chapter 9 but did notalter the types of insurance that were regulated. The Attorney General[on behalfofthe Governor] concedes that “Prop 103 includes surety insurance” and that there is no “ patent ambiguity”onthis point.(Italics in original.) The Attorney General argues instead that “notwithstanding the certainty of surety’s inclusion in Prop 103, the Initiative might contain an anomaly or /atent ambiguity, hidden and not apparent, by virtue of the fact that certain key attributes presumedto apply to all classes ofinsurance named in Prop 103, might in fact not apply to surety.” (Italics in original.) The circumstancethat surety insurancediffers in material respects from other forms of insurance governed by Proposition 103 is relevant to resolution of the question whether surety insurance shouldhave beenincluded within the ambit ofthe initiative (a point we shall discuss below), but this circumstance does not render the initiative ambiguousor in need ofclarification 16 as to whether Proposition 103 applies to surety insurance.It is clear that it does. Amwest argues thatclarification was “sorely needed” because the materials submitted to the voters regarding Proposition 103 did not mention surety insurance and did not include either the text or a summary ofsection 1851. Amwest concludesit is unlikely the voters understood that Proposition 103 applied to surety insurance, and contends“itwould further the purposesofthe Proposition to makeit say what the voters thoughtit meant.” In Wright v. Jordan (1923) 192 Cal. 704, 713 [221 P. 915] we rejected a similar argument that the voters intendeda constitutional amendmentpassedbyinitiative to have a narrowerscope than would follow from its broad language,stating in our opinion: “We cannot adopt this narrow interpretation ofsaid subdivision in said amendmentto the constitution in view of the particular languageofsaid subdivision.... The criticism whichthe respondent makesas to the details of the method by which this amendment to the constitution was adopted constitutes matter which cannot be taken advantage of by him in this proceeding, since it amounts merely to a collateral attack upon an amendmentto the constitution which has been adopted by a majority vote of the people, who must be assumed to have votedintelligently upon an amendmentto their organic law,the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered, regardless of any insufficient recitals in the instructions to voters or the arguments pro and conof its advocates or opponents accompanyingthe text ofthe proposed measure.” (Cf. Brosnahan v. Brown (1982) 32 Cal.3d 236, 252; ? Brosnahan (ibid.), also quoted Wright v. Jordan, in support of the view that Petitioners’ entire argument that, in approving Proposition 8, the voters must have been misled or confused is based upon the improbable assumption that the people did not know what they were doing. It is equally arguablethat, faced with startling crimestatistics and frustrated by the perceived inability ofthe criminaljustice system to protect them, the people knew exactly whatthey were doing. Jn any event, we should notlightlypresumethat the voters didnot know what they were about in approving Proposition 8. (Italics added.) 17 Fair Political Practice Com.v. Superior Court (1979) 25 Cal.3d 33, 42; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243-244; see also Taxpayers To Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 768.) It is clear from the foregoing that the Legislature’s stated purpose in enacting section 1861.135 — to clarify the scope of Proposition 103 — does not withstand scrutiny. There was no doubt prior to the passage of Proposition 103 that the insurance regulations set forth in chapter 9 applied to surety insurance. The initiative altered the substance of those regulations but did not purport to alter the scope of chapter 9. Accordingly, it was clear that the provisions ofProposition 103 applied to surety insurance. Section 1861.135, therefore, did not further the purposes of Proposition 103 by clarifying whether the proposition applied to surety insurance;instead it altered its terms in a significant respect. (11 Cal.4th at pp. 1259-1261 [bold type added].) Delaney and Guardino werecited in a recent decision by the First District, Division One, in which,as in the present case, there was no ambiguity in the language ofan initiative measure (the “Safe Drinking Water and Toxic Enforcement Act of 1986”) and, thus, no need to resort to other sources to ascertain the intent of the voters, California Chamber of Commerce v. Brown (2011) 196 Cal.App.4th 233, 263: [W]e do not perceive any ambiguity in section 25249.8, subdivision (a), with respect to the inclusion in the Proposition 65 list of reproductive toxins identified by the “current” ACGIHlist. Wetherefore need not consider other indicia of legislative intent. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [if statutory language is unambiguous,it is not necessary to resort to indicia of intent].) However, even if we were to do so, we are not persuadedit evinces intent not to incorporate the ACGIHlist. 18 As wehaverecited, the ballot materials stated in part: “At a minimum the Governor must include the chemicals already listed as known carcinogens by two organizations of the most highly regarded national and international scientists: The [NTP] and the [IARC].” CalChamber contends failure to mention the ACGIH reflects an intent that it not be usedasa listing source. However, when the ballot materials are considered in light of the express language of the initiative, which was also ineluded in the voter - materials, it is more reasonable to read the references to the NTP and IARCasillustrative of the kinds of organizations providing “minimum” listing content. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 237 [no inference should be drawn from failure of ballot argument to list all changesinitiative would enact because ballot arguments are not legal briefs]; Delaney v. Superior Court (1990) 50 Cal.3d 785, 802 [The most reasonable inference is that the proponents chose to emphasize (in the limited space available for ballot arguments) whatthey perceived as the greatest need.”’].) Had the intent beento limit listing sources to the NTP and IARC,the statutory language could easily have been drafted to do so. But it was not. (Italics added.) Again, although no express reference was madein the Proposition 47 ballot materials to the application of its definition of unreasonablerisk to Proposition 36 cases, the express languageofthe initiative, “As used throughoutthis Code,” whichplainly referred to other uses of the concept of “unreasonable risk of danger to public safety” in other sections of the Penal Code, such as section 1170.126 (which, as it happens, is the only other such use), was included in the voter materials. If the intent was the exact opposite ofthe clear meaning of the words— i.e., “not as used elsewhere in this Code but limited 19 only to this section” — it “could easily have been drafted to do so.” (Ibid.) In this case the Court ofAppeal regarded section 1170.18, subdivision (c)’s definition of unreasonable risk of dangerto public safety “As used throughoutthis Code” as “Hiddenin the lengthy, fairly abstruse text of the ‘proposedlaw, as presented in the official ballot pamphlet — and nowhere called to voters? attention ....” Ofcourse, the same could be said ofthe definition itself, in which case, according to the Court of Appeal’s reasoning,it would not apply even to section 1170.18. All the Argumentin Favor of Proposition 47 said about the determination of dangerousness wasthat“It authorizes resentencing for anyone whois incarcerated for these offenses and poses no threat to public safety.” (http://ballotpedia.org/ California_ Proposition_47_Reduced_Penalties_ for_Some_Crimes_ Initiative(2014) #Arguments_in_favor) The Analysis by the Legislative Analyst said that “no offender who has committed a specified severe crime could be resentenced or have their conviction changed”, but did not state what those crimes were. (http://web.archive.org/web/ 20140908180059/ http://voterguide. sos.ca.gov/ en/propositions/47/analysis.htm) It could not rationally be arguedthat, because the pamphletdid not bring to the voters’ attention that such “threat” means an unreasonable risk of committing one ofthe “superstrikes” enumerated in section 667, subdivision (e)(2)(C)(4), such risk is not thetest, evenfor purposes ofre-sentencing under section 1170.18. 20 3. Interpreting “as used throughout this Code” accordingto its plain meaning and applyingit to section 1170.126 would not result in “absurd” consequences of which the voters were unaware. Bootstrapping whatit said in People v. Osuna (20 14) 225 Cal.App.4th 1020, 1033-1034 [“Theliteral language ofa statute does not prevailifit conflicts with the lawmakers’ intent”],.the Court of Appeal embarked on a search, not for what the voters meant by “As used throughout this Code,” but for whether the voters intended that the definition of unreasonablerisk should be applied to other provisions of the Penal Code, specifically section 1170.126, and, finding no evidence for such intentin the ballot materials, concludedthat they could not have meant whatthey said. (181 Cal.Rptr.3d at p. 238.) But the language quoted from Osuna does not support ignoring the plain meaning ofthe words. The authority cited for the proposition in Osuna was Lungren v. Deukmejian, supra, 45 Cal.3d 727, 735, and that was a case in which this Court said that the words ofa statute may not be giventheir literal meaning ifthey conflict with other provisionsofthe same statute: “Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.” There is nothing elsewherein section 1170.18 which conflicts with the provision of subdivision (c) that its definition applies “throughoutthis Code.” Aside from that misinterpretation ofLungren, the Court ofAppeal’s departure from the plain meaningofthat phrase, based on the absence of evidencein the ballot materials that the voters were informed by anything 21 other than the text ofthe initiative measurethat it would apply to other sections of the Code, flies in the face of this Court decisions discussed on pages 12-18 above. Continuing, the Court ofAppeal drew support from the statement in In re Michele D. (2002) 29 Cal.4th 600, 606,that“[I]t is settled that the language of a statute should not be givena literal meaningif doing so would result in absurd consequencesthatthe [voters] did not intend.” (181 Cal.Rptr.3dat p. 238.) That is no doubt a correct statement of the law, but it has norelation to this case, because the application of the subdivision (c) definition to section 1170.126 re-sentencing proceedings clearly would notresult in “absurd consequences.” If the consequences were “absurd” in such proceedings, they would also be “absurd”in section 1170.18 proceedings,’ and it certainly cannotbesaid that, therefore, the voters did not intend in approvingthat section that its definition should not be applied to proceedings underit. On February 18, 2015, the Court granted judicial notice of documentation which showsthat, as an historical fact, voters — including those > There have been somecases in which prisoners who were denied relief under Proposition 36 on “dangerousness” grounds were found not to be “dangerous” and were granted relief under Proposition 47. (See, e.g., People v. Franco (2014) 232 Cal.App.4th 831 (Petition for Review No. S224157 mooted by granting of Proposition 47 petition[http://appellatecases. courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2099339&doc_ no=$224157].) Those results have not been deemedso “absurd”by the People that they have appealed them. 22 whowerein a position to, anddid, focus the attention of other voters on the matter — were awarethat the Proposition 47 definition would apply to Proposition 36 re-sentencing. The website of Californians Against Proposition 47, which was sponsored by the California Public Safety Institute and Peace Officers Research Association of California - Political Issues Committee, — (Exhibit 7 to petitioner’s Request for Judicial Notice; http://californians against47.com/, p. 3), stated: Under the Three Strikes Reform Act of 2012 (Proposition 36), Penal Code § 1170.126 providesfor resentencingpetitioners previously sentencedto life terms pursuant to the Three Strikes Law (Penal Code §§ 667(b)-(i) and 1170.12) whose committing offense was non-violent and non-serious. The proposed language in Penal Code § 1170.18(c) would require the prosecution to prove, and the court to find, that the defendant is an unreasonablerisk to society because he or she would likely commit a sexually violent offense, murder, certain sex crimes with children under 14, solicitation to commit murder, assault with a machine gun ona peaceofficer, possession of weaponsofmass destruction or a crime punishable by death orlife imprisonment. Manypotentially violent individuals will be released — not because they do notpose a violent risk to society, but because the Act has unreasonably limited the scope of what is considered a risk of danger to society and whatthe prosecution can present to counter the defendant’s eligibility. The California District Attorney’s Association posted the following statement on the “No on 47” website (http://californiansagainst47.com/about- proposition-47/, pp. 1-4): 23 CDAA LOOKS AT PROPOSITION 47 August 29, 2014 The Standard of Dangerousness Proposed for Resentencing is Impossible to Meet Although other statutes have provided a favorable standard for defendants applying for resentencing, none have imposedthe burden on the prosecution or the court, in exercising discretion to grant or deny a petition for resentencing, to the levelthat Penal Code § 1170.18 proposes. Underthe Three Strikes Reform Act of 2012 (Proposition 36), Penal Code § 1170.126 provides for resentencingpetitioners previously sentencedto life terms pursuant to the Three Strikes Law (Penal Code §§ 667(b)-(i) and 1170.12) whose committing offense was non-violent and non-serious. Penal Code §1170.126 requires that whena petitioner meets the basic criteria for eligibility, the court shall resentence the offender unless the petitioner poses “an unreasonable risk of dangerto public safety.” (Penal Code § 1170.126(f).) The languagein § 1170.126(f) strongly favors the defendant, stating that the petitioner “shall” be resentenced as a secondstrike offender “unless”the court determinesthat resentencingthepetitioneris too dangerous. The burden of proofis on the prosecution and mustbe established by a preponderance of the evidence. (People ‘v. Superior Court (Kaulick) (2013) 215 Cal. App. 4th 1279, 1301-1302.) Althoughthis is a demanding standard, it provides a fair balance andallows the prosecution and court to rely on several sources andareasofrisk to establish that the individual is unsuitable for resentencing. Penal Code § 1170.18, however, changesthat standard to an altogether unreachablelevel. The proposed language in Penal Code § 1170.18(c) would require the prosecution to prove, and the court to find, that the defendantis an unreasonable risk to society because he would likely commit one ofthe listed violent crimes in § 667(e)(2)(C)(iv). 24 Those crimes arelimited to sexually violent offenses, murder, certain sex crimes with children under 14, solicitation to commit murder, assault with a machine gun on a peaceofficer, possession of weaponsofmassdestruction or a crime punishable by death orlife imprisonment, or “Super Strikes” as they are sometimes known.... Moreover,tobeeligible for the resentencing, the defendant must not have committed one ofthese “super strikes” in the past. So, the prosecution’s burden is to prove that someone whohasnever committed one ofthese particular offenses before, poses an unreasonable risk of committing onein the future. As such, Proposition 47 severely narrowsthe definition of “dangerousness”and the scope of whatthe prosecutionis able to present at the hearing whenasserting the inmate poses risk to public safety.... Put simply, not only is this an impossible standard to meet, butit is disenguously disguised as giving the court discretion to deny the resentencing, whenit is designed to ensure that the court has no discretion and hence provides that no defendant could be denied. And if a judge does deny petitioner that resentencing,it creates an immediately appealable issue. As a consequence, many potentially violent individuals will be released — not because they do not posea violent risk to society, but because the Act has excessively limited the scope ofwhatis considered a risk of danger to society and what the prosecution can present to counter the defendant’s eligibility. The standard will far exceed the aim of Proposition 47. Instead of simply reducing prison populations by setting non-violent misdemeanants free, sentenced inmates with violent histories will have a higherlikelihood of freedom,at a substantialrisk to the public. Further, this proposed new definition of “dangerousness”is not 25 limited to only the types of offenders serving terms for crimes affected by this Act, but applies to any resentencing permitted by the Penal Code. Proposed Penal Code § 1170.18 (c) states, “As used throughoutthis Code, “unreasonable risk of danger to public safety means an unreasonablerisk that the petitioner will commit a new violent felony within the meaning of[§ 667(e)(2)(C)(iv)J.” (§ 1170.18, subd. (c) [emphasis added].) By referring to “Code,” § 1170.18 would alter the meaning of “unreasonablerisk of danger to public safety,” not only asit is applied in § 1170.18 resentencing hearings, but in all other hearings that rely on the dangerousness standard throughout the entire Code. Asa result, the prosecution would face the impossible barrier when opposing resentencing for the Three Strikes defendants under Penal Code § 1170.126. Moreover,for any of the Three Strikes defendants previously denied resentencing based upon a judicial finding of dangerousness, may appealthat ruling and request the court now apply this new standard of dangerousness, resulting in a further cost to a court system already struggling financially. (Bold type added.) (It can be seen that the Court of Appeal’s view that application of the Proposition 47 standard to Proposition 36 proceedings would be “absurd”is just a reiteration of the C.D.D.A.’s exaggerated position that the standard would be “impossible”for the prosecution to meet — in re-sentencing proceedings under Proposition 36 and Proposition 47 alike.) Attorneys working at the Judicial Council were also aware of these consequencesofthe Proposition 47 definition of dangerousness, and they madeall Presiding Judges of the Superior Courts aware of them. Ina 26 Memorandumto such judges, dated October 24, 2014, Criminal Justice Services attorneys and the Supervising Attorney of the Center for Families, Children, and the Courts wrote (p.8): Implications for Resentencing Proceedings under Proposition 36 Under Proposition 36, the Three Strikes Reform Act of 2012, certain third strike offenders are eligible to petition for resentencing as a secondstriker. (§ 1170.126(a).) Assuming the petitioner is eligible, the court must resentencethepetitioner “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126(f); emphasis added). This is the same consideration courts would perform during resentencing under Proposition 47, which also prescribes the sameset ofcriteria for consideration. (§ 1170.18(g).) Unlike Proposition 36, however, Proposition 47 narrowly defines the phrase “unreasonablerisk of danger to public safety” as “an unreasonablerisk that the petitioner will commit a new violent felony within the meaning ofsection 667(e)(2)(C)(iv).” As noted above, Proposition 47 would apply this new definition of the phrase “unreasonable risk of danger to public safety” as used throughoutthe Penal Code (§ 1170.18(c)), including the identical provisions under Proposition 36. As such, Proposition 47 may be interpreted to significantly expand the category of petitioners eligible for resentencing under Proposition 36, limiting ineligibility to only those petitioners deemedatrisk to commit crimes enumerated under section 667(e)(2)(C)(iv). The implications of the new definition wouldlikely raise uncertainties for all pending and past Proposition 36 petitions. It can be inferred from the Court of Appeal’s request on November7, 2014 (three days after the voter’s approval ofProposition 47) for supplemental briefing in this case onthe effect of Proposition 47, and even more clearly 27 from its setting of oral argument on November5, 2014,in three companion cases,’ that the justices of the Court ofAppealin this case were also voters who were aware ofthe relation between the Proposition 47 definition and Proposition 36 re-sentencing. The Court of Appeal majority, however, assumedthat, unlike the voters referred to in the preceding paragraphs, the great, unsophisticated masses of voters would not haveread the text of Proposition 47 and become awareofits consequencesfor Proposition 36 Cases. * This case was fully briefed in March 2014. The parties waived oral argument. On November 7,the Court of Appeal requested supplemental briefing on the effect of Proposition 47, within 15 days, with no extensions oftime. Thebriefs were filed by December 1, 2014, and the court’s opinion wasfiled on December 16, 2014. (http://appellatecases.courtinfo.ca.gov/search/ case/dockets.cfm?dist=5&doc_id=2055962&doc_no=F067946) The “companion”cases, in which the same court reached the same conclusionin the unpublishedportions ofthe opinions, filed during the next week — People v. Payne (Dec. 17, 2014) formerly published at 232 Cal.App.4th 579 (petition for review No. $223856 granted March 25, 2015), People v. Losa (Dec. 19, 2014) 232 Cal.App.4th 789, and People v. Franco (Dec. 22, 2014) 232 Cal.App.4th 831 (mooted by granting of Proposition 47 petition) — wereall set for oral argument on November 5, 2014, onedayafter theelection, although briefing was complete in those casesin, respectively January, February, and Mayofthat year, andin all those cases supplemental briefing on the effect of Proposition 47 wasalso requested. (http://appellatecases.courtinfo.ca.gov/ search/ case/dockets.cfm? dist=5&doc_id=2054774&doc_no=F067838; http://appellatecases.courtinfo. ca.gov/ search/case/dockets.cfm?dist=5&doc_ id=2046634&doc_no=F067279; http://appellatecases.courtinfo.ca.gov/search/ case/dockets.cfm?dist=5&doc_id=2045754&doc_no=F067223)It is apparent that the court, whenit set those cases for oral argument, was awareofthe issue of the applicability of the Proposition 47 definition of “unreasonable risk”to Proposition 36 re-sentencing proceedingsandthat it scheduled those cases so that it could be “thefirst out the gate” with opinions that the definition did not apply. 28 It was inappropriate for the Court ofAppealto take this elitist, anti- democratic position. A common complaint aboutthe legislative branch of governmentis that legislators adopt measures — including highly complex regulatory schemes — without adequately studying or even reading their provisions. (See, e.g., N.Y. Timeseditorial (April 10, 2005), “Revising the Patriot Act” [“After Sept. 11, Congress was in such a rush to pass the Patriot Actthat, disturbingly, many members did not even read it before they voted for it”] (http://www.nytimes.com/2005/04/10/opinion/ 10sun1 html?r=0); Teaparty.org website [“it is abundantly clear now that members of Congress really did not, as then-Speaker Pelosi admitted, even read the Obamacarebill before they passedit” (http:// www.teaparty.org/ did-president-read- obamacare-before-he-signed-it-29595/#sthash. O0GAZICDg.dpuf).) But the respect which the judicial branch owesto the legislative branch in our tripartite form of governmentrestrainsthe judiciary from expressing the view — at least in public pronouncements — that the lawmakers had no idea what they were doing and from invalidating legislation on that ground. The samerestraint should be shownbythe courts in reviewing the actionsofthe people ofthe state whenthey, throughtheinitiative process, take on therole ofthe Legislature. Just as the judiciary would be overstepping its boundaries by interpreting a bill passed by the Legislature based on the assumption that 29 legislators were acting blindly, a court crosses the line whenit refuses to give to the words approved bythe voters their clear significance on the groundthat they were the productof inattention and ignorance by the electorate. That is what the Court ofAppeal majority did whenit said “Voters cannot intend ~ something of which they are unaware.” (181 Cal.Rptr.3d at p. 242.) Asthis Court has said, time and again (see pp. 12-18, supra), the voters must be presumed to have known whatthey were doing andto have votedintelligently. CONCLUSION For the foregoing reasons, this Court should presumethat the voters read and understoodthe provisions of Proposition 47 and meant exactly what they said when they providedthatits definition of “unreasonable risk of danger to public safety” applies throughout to Penal Code to that conceptas used in Proposition 36. Dated: December14, 2015 Respectfully submitted, [ech SUCH JOHN T. PHILIPSBORN, Chair, Amicus Committee Attorneys for Amicus Curiae CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE 30 CERTIFICATE OF LENGTH Counsel for appellant hereby certifies that this brief consists of 7857 words (excluding tables, proof ofservice, and this certificate), according to the word count of the computer word-processing program. (Cal. Rules of Court, rule 8.360(b)1).) thrall RICHARD SUCH PROOF OF SERVICE BY MAIL I, RICHARD SUCH,say: I am overthe age of eighteen years, a citizen of the United States, and a resident of Santa Clara County, California. My addressis 1120 College Avenue, Palo Alto, CA, 94306. On December/£, 2015, I served the within Application for Leave to Appear as Amicus Curiae and Brief in Support ofPetitioner on the following persons by placing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at Oakland, California, addressed as follows: Peter Thompson Office of the Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 95814 Stephanie L. Gunther Attorney at Law 841 MohawkStreet, Suite 260 Bakersfield, CA 93390 Office ofthe District Attorney Tuolumne County 423 N. WashingtonSt. Sonora, CA 95370 Tuolumne County Superior Court 41 Yaney Ave Sonora, CA 95370 I declare under penalty of perjury that the foregoingis true and correct. Executed this [olday of December, 2015, at San Francisco, California. [Lhordbah! RICHARD SUCH