BRIGGS v. BROWNAmicus Curiae Brief of California District Attorneys AssociationCal.March 30, 2017SUPREME COURT FILED IN THE SUPREME COURTOF THE MAR 30-2017 STATE OF CALIFORNIA RON BRIGGS AND JOHN VAN DE KAMP, VS. JERRY BROWN,in his official capacity as Governorof California; KAMALA HARRIS,in herofficial Capacity as Attorney Generalof California’; CALIFORNIA’S JUDICIAL COUNCIL;and DOES 1 THROUGHXX, Jorge Navarrete Clerk Petitioners, Deputy NO. 238309 Respondents. N e w e e N e e N e N e e e e N e N e e e e e e e ” “e e” APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE, CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION, IN SUPPORT OF RESPONDENTS JERRY BROWN,in his official capacity as Governor of California; KAMALAHARRIS,in herofficial capacity as Attorney Generalof California; CALIFORNIA’S JUDICIAL COUNCIL; and DOES I THROUGH XX STEPHEN M. WAGSTAFFE President, SBN 78470 MARK ZAHNER,Executive Director, SBN 13772 Executive Director FRANK C. MEYERIV, SBN 95490 California District Attorneys Association 921 Eleventh Street, Suite 300 Sacramento, CA 95814 Telephone: (916) 443-2017 Email: mzahner@cdaa.org ' Ms.Harris is now the junior United States Senator for California. Xavier Becerra is now the Attorney General of California. APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF TO THE HONORABLEJUSTICES OF THE CALIFORNIA SUPREME COURT: The California District Attorneys Association (CDAA)as amicus curiae hereby requests permission to file the enclosed amicuscuriae brief in support ofrespondents, Jerry Brown,in his official capacity as Governor of California; Kamala Harris, in her official capacity as Attorney General of California; California’s Judicial Council; and Does I Through XX. The California District Attorneys Association is a statewide association representing the professional and educationalinterests of California prosecutors. CDAA is a professional organization that has been in existence for over 90 years, and was incorporated as a nonprofit public benefit corporation in 1974. CDAA hasover 2,800 members,including elected and appointeddistrict attorneys, the Attorney General of California, city attorneys principally engaged in the prosecution of criminal cases, and the deputy andassistant attorneys employed by these officials. CDAA membersbear the critical responsibility of reviewing, filing, and prosecuting criminal charges against those persons alleged to have committed criminal offenses on behalf of the People ofthe State of California, including special circumstance(s) murders which involve the death penalty as a possible punishment upon conviction. CDAA members | shoulder the very heavy responsibility for prosecuting capital murdercases, seeking to hold those responsible accountable for what they did, and justice for the victims’ families and their loved ones. CDAA presents prosecutors’ views as amicus curiae in appellate cases when it concludesthat the issues raised in such cases will significantly affect the administration of criminal justice. The case before tise Court presents issues ofthe greatest interest to California prosecutors. Asthe statewide association of these prosecutors, amicus curiae, CDAA,is familiar and experienced with the issues presented in this proceeding, specifically the provisions of the recently voter passedinitiative that petitioners now challenge, Proposition 66, which seeks only to reform and amend some death penalty procedures with the aim of curbing the monetary waste, interminable delays, and inefficiencies that plague and encumberthe present system. Asthe statewide association of California prosecutors, amicus curiae, CDAA,submits that additional briefing and argument on behalf of California’s prosecutors will assist the Court in its evaluation and resolution of this case. Such considerations are relevant to the ultimate disposition of the issues presented, which will have statewide impact. Pursuant to California Rules of Court, rule 8.520(f)(4), applicant states that no party nor counsel for a party in this proceeding authored in whole orin part the proposed amicus curiae brief, nor made any monetary contribution to fund the preparation or submission ofthe proposed amicus curiae brief. Applicant further states that no person or entity made any contributions to fund the preparation or submission ofthe proposed amicus curiae brief other than amicus curiae and its members. Accordingly, applicant requests that this Court permit the filing of the attached amicuscuriae brief and permit CDAA to appear as amicus curiae in support of respondents. Date: March 29, 2017 Respectfully submitted, MARK ZAHNER Executive Director California District Attorneys Association IN THE SUPREME COURT OF THE STATE OF CALIFORNIA RON BRIGGS AND JOHN VAN DE KAMP, Petitioners, VS. NO. 238309 JERRY BROWN,in his official capacity as Governorof California; KAMALA HARRIS,in her official Capacity as Attorney General of California’; CALIFORNIA’S JUDICIAL COUNCIL; and DOES 1 THROUGHXX, Respondents. N e a N a e ” N e e ” N e e ! N e e ! e e ” r e e t e ” e e N e e ” t e e ” N e e ’ BRIEF OF AMICUS CURIAE CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION IN SUPPORT OF RESPONDENTS JERRY BROWN,inhis official capacity as GovernorofCalifornia; KAMALA HARRIS,in herofficial capacity as Attorney General of California; CALIFORNIA’S JUDICIAL COUNCIL;and DOES I THROUGH XX STEPHEN M. WAGSTAFFE President, SBN 78470 MARK ZAHNER,Executive Director, SBN 13772 Executive Director FRANK C. MEYERIV, SBN 95490 California District Attorneys Association 921 Eleventh Street, Suite 300 Sacramento, CA 95814 Telephone: (916) 443-2017 Email: mzahner@cdaa.org * Ms.Harris is now the junior United States Senator for California. Xavier Becerra is now the Attorney General of California. TABLE OF CONTENTS TABLE OF AUTHORITIES ISSUES PRESENTED FACTS AND PROCEDURAL SUMMARY ARGUMENT I. INTRODUCTION I. THE SIGNIFICANCE AND PROTECTION OF THEINITIATIVE PROCESS III. PROPOSITION 66 DOES NOT INTERFERE WITH THE ORIGINAL HABEAS CORPUS JURISDICTION OF THE CALIFORNIA COURTS IV.PROPOSITION 66 DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE V. PROPOSITION 66 DOES NOT VIOLATE THE SINGLE SUBJECT RULE VI.PROPOSITION 66 DOES NOT VIOLATE EQUAL PROTECTION VII. SEVERABILITY VITI. CONCLUSION Certificate of Word Count Declaration of service Page 10 10 11 15 16 22 31 33 34 35 36 TABLE OF AUTHORITIES CASES Adoption ofAlexander S. (1988) 44 Cal. 3d 857 Brosnahan v. Brown (1982) 32 Cal. 3d 236 Brown v. Superior Court (2016) 63 Cal. 4th 335 Brydonjack v. State Bar ofCalifornia (1929) 208 Cal. 439 Californians For An Open Primary v. McPherson (2006) 38 Cal. 4th 735 Griggs v. Superior Court (1976) 16 Cal. 3d 341 In re Kler (2010) 188 Cal. App. 4th 1399 In re Lira (2014) 58 Cal. 4th 573 In re McKinney (1968) 70 Cal. 2d 8 In re Reno (2012) 55 Cal. 4th 428 Johnson v. Superior Court (1958) 50 Cal. 2d 693 Jones v. Chappell (2014) 31 F. Supp. 3d 1050 Jones v. Davis (9th Cir. 2015) 806 Fed. 3d 538 Lackey v. Texas (1995) 514 U.S. 1045 Lorraine v. McComb (1934) 220 Cal. 753 Lueras v. BAC (2013) 221 Cal. App. 4th 49 Milholen v. Riley (1930) 211 Cal. 29 Obrien v. Jones (2000) 23 Cal. 4th 40 People v. Allen (1986) 42 Cal.3d 1222 People v. Anderson (2001) 25 Cal. 4th 543 People v. Engram (2010) 50 Cal. 4th 1131 People v. Frierson (1979) 25 Cal. 3d 142 People v. Leiva (2013) 56 Cal. 4th 498 People v. Johnson (1992) 3 Cal.4th 1183 Page 16 23, 29, 30, 31 15, 23 16, 21 23 17 17 22 22 12, 33 21, 22 13 13 14 20 18 18 22 32 13 22 12 21 32 People v. Manriquez (2005) 37 Cal. 4th 547 People v. McDowell (2012) 54 Cal. 4th 395 People v. Moreno (2014) 231 Cal. App. 4th 934 People v. Roberts (2005) 36 Cal. 4th 575 People v. Romero (1994) 8 Cal. 4th 728 People v. Seumanu (2015) 61 Cal. 4th 1293 People v. Standish (2006) 38 Cal. 4th 858 People v. Wallace (2008) 44 Cal. 4th 1032 Raven v. Deukmajian (1990) 52 Cal. 3d 336 Sacramento & San Joaquin Drainage Dist. v. Superior Court (1925) 196 Cal. 414 Senate ofthe State ofCalif. v. Jones (1999) 21 Cal. 4th 1142 Superior Court v. County ofMendocino (1996) 13 Cal. 4th 45 Tobe v. City ofSanta Anna (1995) 9 Cal. 4th 1069 STATUTES Code of Civil Procedure, section 170.6 Penal Code,section 1473.6 Penal Code, section 1485.55 (Senate Bill 1134) Penal Code, section 1509 Government Code, section 68662 Prop. 66, section 3 — amending Penal Code, sec. 190.6 Prop. 66, section 4 — amending Penal Code, sec. 1227 Prop. 66, section 5 — adding Penal Code,sec. 1239.1 Prop. 66, section 6 — adding Penal Code, sec. 1509 Prop. 66, section 7 — adding Penal Code, sec. 1509.1 32 13 32 17 16 14 21 12, 13 passim 17 23 20, 21, 22 15 22 32 32 15, 17, 19 19, 20 25 25 25 26 26 Prop. Prop. Prop. Prop. Prop. Prop. Prop. Prop. Prop. Prop. Prop. 66, section 8 — adding Penal Code, sec. 2700.1 66, section 9 — amending Penal Code, sec. 3600 66, section 10 — amending Penal Code, sec. 3604 66, section 11 — adding Penal Code,sec. 3604.1 66, section 12 — adding Penal Code, sec. 3604.3 66, section 13 — adding Penal Code, sec. 68660.5 66, section 14 — adding Gov’t. Code, sec. 68661 66, section 15 — adding Gov’t. Code,sec. 68661.1 66, section 16 ~ amending Gov’t. Code, sec. 68662 66, section 17 — amending Gov’t. Code, sec. 68664 66, section 18 — amending Gov’t. Code, sec. 68665 Statutes 1977, chapter 316 RULE OF COURT California Rules of Court, Rule 1.5 (b) CONSTITUTIONAL PROVISIONS California Constitution, Article 2, section 8, subd. (d) California Constitution, Article 3, section 3 California Constitution, Article 6, section 10 PROPOSITIONS Proposition 7 (1978) Proposition 8 (1982) Proposition 115 (1990) Proposition 66 (2016) Proposition 66 — Findings and Declarations 26 26 26 27 27 27 28 28 28 28 12 18 23 19 16 12 29, 30 28, 29, 30 passim 24, 25 OTHER AUTHORITIES & SOURCES Alarcon, Remedies for California’s Death Row Deadlock (2007) 80 So. Cal. L. Rev. 697. 19 California Dept. of Corrections & Rehabilitation, Division ofAdult Operations, Death Row Tracking System - Condemned Inmate List & Condemned Inmate Summary List 13 California Secretary of State, Statement ofVote, General Election — November8, 2016 11,12 California Secretary of State, Statement ofVote, General Election — November6, 2012 12 Beckett, Waitingfor Godot (1953) 12 Weinstein, Court Urges Amendment to Speed Death Penalty Reviews, Los Angeles Times, November 20, 2007 19 BRIEF OF AMICUS CURIAE CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION ISSUES PRESENTED 1. Does Proposition 66 interfere with the original habeas corpus jurisdiction of the California Courts in death penalty litigation? 2. Does Proposition 66 violate the separation ofpowers doctrine as specified in Article 3, section 3 of the California Constitution by defeating and/or materially impairing the constitutional and inherent powersofthe courts to resolve capital appeals and habeas corpus cases? 3. Does Proposition 66 violate the single subject doctrine as specified in Article 2, section 8 subdivision (d) of the California Constitution? 4. Does Proposition 66 violate the equal protection clauses of the California and United States Constitutions? FACTS AND PROCEDURAL SUMMARY Proposition 66 (Death Penalty Reform and Savings Act of 2016) was passed by California voters at the statewide general election on November 8, 2016. On November9, 2016, petitioners filed a petition for writ of mandate/prohibition with a request for stay in this Court challenging the legality ofProposition 66. On November16, 2016, becausethe petition for extraordinary reliefnames the Judicial Council of California as a party, and Chief Justice Tani Cantil-Sakauye and Associate Justice Ming Chin are members ofthe Judicial Council, this Court ordered them disqualified from participating in this matter and are recused. On November17, 2016, the application for a stay pertaining to any action by the Secretary of State to certify the election results with respect to Proposition 66 was denied with leave to renew the motion if and when theelection results are certified 10 establishing that Proposition 66 has been approved by the voters. On December 16, 2016, the Secretary of State certified the election results confirming the voters had passed Proposition 66. On December 19, 2016, petitioners filed an amended and renewedpetition for extraordinary relief, including writ of mandate and request for immediate injunctive relief preventing enforcement of Proposition 66. Petitioners assert several causes of action attacking the legality of Proposition 66 and request that it be declared null and void in its entirety. On December 20, 2016, this Court issued a stay of the implementation ofProposition 66 pending further consideration and action by the Court, and set dates for further briefing of the issues by respondents and other interested parties. On February 1, 2017, this Court issued an order for respondents to show cause whytherelief sought by petitioners should not be granted, and continuedthe stay ofthe implementation ofProposition 66 pending the Court’s decision on this matter. ARGUMENT I. INTRODUCTION The November8, 2016 general election provided California voters a direct, head-to-head, choice on the question of the death penalty, as two opposing initiatives were presented for the voters to choose. Proposition 62 (“Death Penalty Initiative Statute”), proposed to repeal the death penalty and replace it with life imprisonment without parole. Proposition 66 (“Death Penalty Reform and Saving Act of2016”), proposed to implement certain specified reforms and adjustments to the death penalty process and litigation. The voters rejected Proposition 62 by a margin of 53.2% to 46.8%. The voters passed Proposition 66 by a margin of 51.1% to 48.9%. (See Cal. Secretary of State, Statement ofVote, Gen. Elec. (Nov. 8, 2016), 11 pp. 12, 73, 76.) Thus, when given a direct choice, the majority of voters expressed their desire that “No, we do not want to abolish the death penalty in California,” but “Yes, we want to see the death penalty system reformed, made moreefficient, predictable, and less costly.” Since the reinstatement of the death penalty with passageofstatutes by the legislature in 1977 (Statutes 1977, chapter 316) and the people in 1978 (Proposition 7), death penalty opponents havefailed to have it declared unconstitutional in the courts. (People v. Frierson (1979) 25 Cal. 3d 142, 185-186; People v. Wallace (2008) 44 Cal. 4th 1032, 1097-1098); they havealso failed in attempts to abolishit at the ballot box;? but they have turned to other avenues to thwart implementation of death penalty judgments in California. Efforts have focused on repeated challenges to the methods employed in the proposed execution of lawfully convicted and sentenced defendants as an alleged violation of the Eighth Amendment’s ban on cruel and unusual punishment, as well as the prolongation ofthe entire death penalty review process through protracted postconviction litigation, motions, petitions, and writs ofhabeas corpus. The result has become what most everyone connected to the process agreesis a dysfunctional, expensive, and inefficient system beset by seemingly endless delays. (See In re Reno (2012) 55 Cal. 4th 428, for extensive discussion concerning the delay issue.) For the families and loved ones ofmurdered victims, as well as the condemned inmates, the final resolution of a death penalty case in California has becomelike waiting for Godot.’ > Proposition 34, November 2012 general election; defeated by a margin of 52% to 48% (See Cal. Secretary of State, Statement of Vote, Gen. Elec. (November6, 2012) p. 69; Proposition 62, November 2016 general election; defeated by a margin of 53.2% to 46.8% (See Cal. Secretary of State, Statement ofVote, Gen. Elec. (November8, 2016) p. 12. * Samuel Beckett, Waitingfor Godot(1953). 12 Considering the impact of these delays, the numbersare staggering. According to data provided by the California Department of Corrections and Rehabilitation (CDCR), as of February 2017, there are 749 inmates on the CDCR condemned inmate list awaiting execution. Of this number, 342 (45%) have been on death row for more than twenty years, and 147 others have been on death row between fifteen and nineteen years. Thus, ofthe 749 inmates currently on the CDCR condemnedinmate list, 65% (489) have been on death row fifteen years or more. Furthermore, of the overall! total on the CDCRinmate condemnedlist, eighty have been on death row for more than thirty years, and 25% of death row is age sixty years and older. (See California Department of Corrections and Rehabilitation, Division of Adult Operations, Death Row Tracking System, Condemned- Inmate List (Secure), and Condemned Inmate Summary List.) A related issue that continues to lurk with the paralyzing delays in the current death penalty system cameto the forefront not long ago in a federal habeas corpus proceeding, whena federal district courtjudge ruled that the systemic delays in California’s dysfunctional death penalty system has rendered the system so arbitrary in its implementation (or lack thereof) that the system is unconstitutionalas a violation of the Eighth Amendment’s ban on cruel and unusual punishment. (Jones v. Chappell (2014) 31 F. Supp. 3d 1050; decision reversed in Jones v. Davis (9th Cir. 2015) 806 Fed. 3d 538.) While the district court decision was reversed by the Ninth Circuit Court ofAppeal, and this Court has continued,so far, to reject the claim that continued delays in the postconviction death penalty review processare a valid basis for finding a violation ofthe Eighth Amendment (People v. Anderson (2001) 25 Cal. 4th 543, 606; People v. Wallace (2008) 44 Cal. 4th 1032, 1097-1098; People v. McDowell (2012) 54 Cal. 4th 395, 412), the issue remains as an one more point for the defense to addto its arsenal of delaying tactics for capital cases. 13 In People v. Seumanu (2015) 61 Cal. 4th 1293, this Court declined to rule on the viability or legitimacy of whatit termed a “Jones claim,”” for wantofproofin the appellate record beforeit, suggesting that such a claim is more appropriately presented in a petition for a writ of habeas corpus where necessary evidence outside the appellate record can be presented. (Id. p. 1375.) Notwithstanding the rejection of the defendant’s claim, this Court did not dismiss the “Jones claim” concept out of hand, and, instead, noted, “But, although we have consistently, and recently, rejected the Eighth Amendment delay claim, doctrine can evolve.” (ID. p. 1369, emphasis added.) While it does not say so explicitly, the language in Seumanu suggest that if the death penalty system in California continues to move as ponderously as it has for so long, there may come a day when the courts will seriously entertain a “Jones claim” or a “Lackey claim”? (Lackey v. Texas (1995) 514 U.S. 1045.) Amongits reform measures, Proposition 66 seeks to addressthis issue ofparalyzing delay, and prevent any future legal calamity, by providing reasonable, commonsense procedures to make the system of capital punishment moreefficient, reliable, and less time consuming. The reform measures contained in Proposition 66 are logical, practical, not intrusive in their scope, and should be upheld as the express will of the people who voted to passit. ° “A claim that systemic delay in resolving postconviction challenges to death penalty judgments hasled to a constitutionally intolerable level of arbitrariness in the implementation ofthe penalty.” (ID. p. 1368.) ° Asexplained in Sewmanu, 61 Cal. 4th at p. 1372, a “Lackey claim”deals with how long a postconviction delay affects the state’s interest in retribution and deterrence, as well as the psychologically brutalizing effect on the condemned inmate. A “Jones claim” examines whethera long postconviction delay leads to the infliction of a criminal sanction in a mannerthatis so arbitrary that its imposition can be characterized as cruel and unusual. 14 Amicus concurs with the points madein the excellent briefing already presented by Intervenor, Californians to Mend, Not End, the Death Penalty; the Attorney General; and the Association ofDeputy District Attorneys for Los Angeles County and Nine Other Associations Representing District Attorneys in this matter. Amicus submits this brief to provide the Court additional arguments in support ofProposition 66, and in opposition to Petitioners’ facial challenge to the constitutional validity of this initiative.’ II. THE SIGNIFICANCE AND PROTECTION OFTHEINITIATIVE PROCESS This Court has long recognized the significance ofthe initiative process in California and recognized its duty to protect this process. This Court recently restated the principle that “the initiative process occupies an important and favoredstatus in the California constitutional scheme....” (Brown v. Superior Court (2016) 63 Cal. 4th 335, at 351.) As this Court said in Raven v. Deukmejian (1990) 52 Cal. 3d 336: ... we stress that it is a fundamental precept of our law that, although the legislative power underour constitutional framework is firmly vested in the Legislature, ‘the people reserve to themselves the powers of initiative and referendum.’ It follows that the poweroftheinitiative mustbeliberally construed...to promote the democratic process. Indeed ... It is our solemn duty jealously to guard the sovereign people’s initiative power, it being one ofthe most preciousrights of our democratic process. Consistent with prior precedent, we are required to resolve any reasonable doubts in favor of the exercise of this precious right. 52 Cal. 3d at 341. 7 A facial challenge to the constitutional validity ofa statute,initiative, or ordinance considers only the text of the measureitself. (Tobe v. City of Snata Anna (1995) 9 Cal. 4th 1069, 1084.) 15 III. PROPOSITION 66 DOES NOT INTERFERE WITH THE ORIGINAL HABEAS CORPUS JURISDICITION OF THE CALIFORNIA COURTS Petitioners claim that Proposition 66 attemptsto strip the state courts of their authority to hear and decide habeas corpuspetitions. They contend “Article 6, section 10 of the California Constitution vests, without limitation, original habeas corpusjurisdiction in each of California’s state courts: The Supreme Court, courts of appeal, and superior courts, and their judgeshaveoriginal jurisdiction in habeas corpus proceedings.” (See Amended and RenewedPetition for Extraordinary Relief, Memorandum Points and Authorities, p. 20, 21.) As further argued, petitioners maintain that Proposition 66, through the addition ofPenal Code section 1509, unlawfully revokesthe original jurisdiction ofthe Supreme Court and the courts of appeal by mandatingthat “if a petitioner attempts to challenge his or her incarceration in an original proceeding in the Court of Appeals or the Supreme Court, that court musttransfer the petitioner’s case to the Superior Court in which the defendant was convicted unless the petitioner can show good cause hearing the case elsewhere.”(Ibid. p. 23, 24.) Petitioners are mistaken, and their arguments misdirected. They confuse venue with jurisdiction. Article 6, section 10 ofthe California Constitution does give original jurisdiction in habeas corpus proceedingsto all three levels ofthe state’s courts. However, Article 6, section 10 does not specify or dictate that one level has priority over the other, nor that the original jurisdiction of the courts is without somelimitation.It is well established that in the exercise ofthis original jurisdiction in habeas corpus proceedings, courts are not free to do whatever they wish, but must abide by the proceduresset forth in the Penal Code. (People v. Romero (1994) 8 Cal. 4th 728, 737; Adoption ofAlexander S. (1988) 44 Cal. 3d 857, 865.) 16 Furthermore, the legislature, or the people, through the initiative process (California Constitution, Article 2, sections 1 and 8) “may put reasonable restrictions upon the constitutional functions ofthe courts provided they do not defeat or materially impair the exercise ofthose functions. ...the mere procedure by whichjurisdiction is to be exercised may be prescribed by the legislature, unless such regulations should be found to substantially impair the constitutional powers of the courts, or practically defeat their exercise.” Brydonjack v. The State Bar ofCalifornia (1929) 208 Cal. 439, 444; Sacramento & San Joaquin Drainage Dist. v. Superior Court (1925) 196 Cal. 414, 432.) Proposition 66 does nothing to impair the constitutional powers ofthe courts or defeat the exercise of such powers. It simply provides a practical and reasonable procedure to assist and accelerate the processing and disposition ofhabeas corpuspetitions in capital cases, something thatis desperately needed. Furthermore, the procedure put forth in the newly added Penal Code section 1509 (a) (having habeas petitions in capital cases heard by the court which imposed the sentence)is in step with previous decisions of this Court that a habeas petition challenging the validity ofa particularjudgment and sentence (which is what habeaspetitions in capital casesare all about) is best heard by the superior court andtrial judge where the case wasinitially brought andlitigated. (Griggs v. Superior Court (1976) 16 Cal. 3d 341, 347; People v. Roberts (2005) 36 Cal. 4th 575, 583.) It is commonsensethat no court is better situated to consider such a petition; no court is more familiar with the facts and circumstances, the parties, the evidence, andthe intricate details surrounding the case than the original superior court andtrial judge whoissued the judgment of conviction. (Compare, Jn re Kler (2010) 188 Cal. App. 4th 1399, 1404.) This fact, and the provisions in Penal Code section 1509 (b) and Government Code section 68662, calling for the trial court, after the entry 17 of a judgmentof death, to offer to appoint counsel to represent the defendant sentenced to death for purposesof state postconviction proceedings can only serve to help expedite the postconviction litigation process and makeit moreefficient. Such measures can only assist this Court, and not substantially impair its powers or functions. As this Court hasstated, “...the legislature mayat all times aid the courts and may even regulate their operations so long as their efficiency is not thereby impaired.” (Milholen v. Riley (1930) 211 Cal, 29, 34.) Rather than impairing the efficiency of this Court, the procedures in Proposition 66 will serve to enhanceits efficiency by helping to reduce its work load in postconviction death penalty litigation. Moreover,petitioners are mistaken when they assert that Proposition 66 mandates a habeas corpuspetition in a capital case filed in this court, or the court of appeal, must be transferred to the superior court where the defendant was convicted unless the defendant can show good causenotto do so. (Amended Petition, MPA,p. 24.) Penal Code section 1509(a) does not specify this must be done;ratherit providesthat it “should” be done. “Should”is permissive, not mandatory;it expresses what ought to be done. Case law has defined “should”to “generally ... mean a moral obligation or recommendation.” (Lueras v. BAC (2013) 221 Cal. App. 4th 49, 75; Cal. Rules of Court, Rule 1.5(b).) A further indication that Proposition 66 does not strip this Court, or the courts of appeal, of the authority to entertain and decide habeaspetitions in capital cases is the fact that Penal Code section 1509(a) allows for a habeas petition initially filed in any court other than the court which imposed sentence may remain whereit was filed upon a showing of good causeto do so. As noted, delay has becomethe nameofthe gamein postconviction death penalty litigation. Petitioners’ insistence that all such petitions be filed in this Court, as opposed to the superior court where the judgment of 18 conviction wasenteredis reflective ofthis fact. We have one Supreme Court, with seven justices (utterly overwhelmed by the sheer numberof death penalty cases it faces). We have 58 superior courts throughout the state with hundreds ofjudges to hear and determine these habeaspetitions. Which venueprovides the most efficient avenue to hear and determine these petitions in a timely manner? Theprocedures presented in Proposition 66, through Penal Code section 1509 and Government Code 68662, do not interfere with the powers ofthe state courts and are not unconstitutional. They simply and lawfully reflect and implement long standing suggestions and recommendations to remedy the crippling delay problems that plague the capital punishment process called for by respected legal observers and even this Court. (See Alarcon, Remediesfor California’s Death Row Deadlock (2007), 80 So. Cal. L. Rev. 697, 743; Weinstein, Court Urges Amendment to Speed Death Penalty Reviews, Los Angeles Times, Nov. 20, 2007.8 IV.PROPOSITION 66 DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTIRNE Petitioners contend that for the same reasons that Proposition 66 interferes with the jurisdiction of California Courts, it also violates the separation ofpowers doctrine. (See AmendedPetition, MPA,p. 28) Again, Petitioners are mistaken. “The powers of state governmentare legislative, executive, and judicial. Persons charged with the exercise of one power may notexercise either of the others except as permitted by this Constitution.” (Cal. Const., Article 3, section 3.) Article 3, section 3 establishes the separation ofpowers doctrine in California state government. It limits the authority of one ofthe three ® Availableat: http.//articles.latimes.com./2007/nov/20/local/me-death 20 19 branches of governmentto intrude on the core functions ofanother branch. “The judiciary, in reviewing statutes enacted by the Legislature, may not undertake to evaluate the wisdom ofthe policies embodied in such legislation; absent a constitutional prohibition, the choice among competing policy considerations in enacting lawsis a legislative function.... [c.o.|The executive branch, in expending public funds, may not disregard legislatively prescribed directives and limits pertaining to the use of such funds.... [c.o.] And the Legislature may not undertake to readjudicate controversies that have beenlitigated in the courts andresolved byfinal judgment.” (Superior Court v. County ofMendocino (1996) 13 Cal. 4th 45, 53 (internal citations omitted).) However, the doctrine is not intended, and has not been interpreted by the courts, to prohibit one branch of government from taking action that might affect the functions of another. Our governmentis based on a system of checks and balances, which requires each branch to be mindful ofthe actions ofthe other. While the shared powers of our governmentare independentin certain of their essential functions, at the same time, they are mutually dependentin others. “This truth often gives rise to occasions wherethe line of separation is not clear and distinct. Accordingly, repeated instances are to be found wherethe judicial department has submitted to the regulatory powerofthe legislative department. This is particularly true in matters ofprocedure.” (Lorraine v. McComb (1934) 220 Cal. 753, 756.) Proposition 66 follows these lines, as its provisions are directed at procedural matters in the courts. While each of the three branches ofgovernment are independent under the Constitution, “California decisions long have recognizedthat,in reality, the separation ofpowers doctrine does not mean that the three departments of our government are not in many respects mutually dependentor that the actions of one branch may notsignificantly affect those of another branch.” 20 (Superior Court v. County ofMendocino, supra, 13 Cal. 4th, p. 52.) “Of necessity the judicial department as well as the executive must in most matters yield to the powerof statutory enactments. The powerofthe legislature to regulate criminal and civil proceedings and appeals is undisputed. The legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise ofthose functions.” (Brydonjack v. State Bar, supra, 208 Cal., p. 442-444; People v. Engram (2010) 50 Cal. 4th 1131, 1147.) While there is no question that the courts are an independent branch of government, and possess broad inherent powersto properly and effectively carry out their judicial functions and managetheir calendars, “It does not follow that the Legislature necessarily violates the separation ofpowers doctrine wheneverit legislates with regard to such inherent judicial power or function.” (Superior Court v. Mendocino County, supra, 13 Cal.4th at 57.) This Court hasstated it does not believe,“that a constitutional grant of general authority to the court necessarily constitutes a restriction on the powerofthe Legislature to place reasonable limits upon a court’s exercise of discretion in certain instances.” (People v. Standish (2006) 38 Cal. 4th 858, 880-881.) In Johnson v. Superior Court (1958) 50 Cal. 2d 693, the issue was whether Codeof Civil Procedure section 170.6, permitting a party to disqualify a trial courtjudge upon the submission of a written declaration of prejudice, was an unconstitutionalintrusion by the legislature on the power of the courts. In ruling that the statute was not unconstitutional, this Court began by noting, “There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear before it can be declared unconstitutional.” (Id. p. 696; People v. Leiva (2013) 56 Cal. 4th 498, 506-507.) The decision went on to state that that the 21 legislature may enact reasonablerules and regulations concerning proceduresand operations ofthe courts, and determined that Code ofCivil Procedure section 170.6 came within the scope ofthis legislative authority. (Johnson v. Superior Court, supra, at 697-700.) There are many examplesofvarious aspects of inherent judicial power being affected by legislative enactments, and upheld by this Court as not being a violation of the separation ofpowers. Among them are measures limiting the court’s power of contempt (Jn re McKinney (1968) 70 Cal. 2d 8, 11-12); the exercise of legislative power over the appointmentofcertain members ofthe State Bar Court (Obrien v. Jones (2000) 23 Cal. 4th 40, 48); and legislation permitting counties to direct the superior court to remain closed on certain county furlough days (Superior Court v. County of Mendocino, supra, 13 Cal. 4th 60, 64; the challenge in Mendocino wasalso a facial challenge.) This is exactly the case with Proposition 66. Proposition 66 does nothing to violate the separation ofpowers doctrine. It does not defeat or materially impair the inherent power or function of the courts. (Jn re Lira (2014) 58 Cal. 4th 573, 583-584)It is a valid exercise ofthe people’s legislative power to enact reasonable procedural changesfor the operation ofthe court system in postconviction capital litigation. Petitioners’ contention that Proposition 66 violates the separation ofpowersis a specious argumentthat fails to overcome the presumption in favor of the constitutionality ofthis law. As such, it should be denied. V. PROPOSITION 66 DOES NOT VIOLATE THE SINGLE SUBJECT RULE Theinitiative process occupies an important and favoredstatus in the California constitutional system, and courts have consistently deemedit 22 their duty to guard the people’s right to exercise the initiative power. (Brown v. Superior Court, supra, 63 Cal. 4th at 351.) However,this right does not come without somelimitation. Under the California Constitution, Article 2, section 8, subd. (d): “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” From this comesthe “single subject rule,” intended to provide the voters protection from measures containing unduly diverse or extensive provisions bearing no reasonable relationship to each otheror to the general object whichis being promoted. The single subject requirement is a constitutional safeguard to protect against improper manipulation or abuse of the initiative process. (Senate ofthe State ofCalifornia v. Jones (1999) 21 Cal. 4th 1142, 1158.) In keeping with its stated duty to “to guard the people’s right to exercise the initiative power,” (Brown v. Superior Court, supra, at 351), this Court has long recognized a simple straight-forward test to determine whether an initiative satisfies the single subject rule: “The single subject rules have beensatisfied so long as challenged provisions meet the test ofbeing reasonably germane to a common theme, purpose, or subject.” (Californians For An Open Primary v. McPherson (2006) 38 Cal. 4th 735, 764; Raven v. Deukmejian (1990) 52 Cal. 3d 336, 346-347; Brosnahan vy. Brown (1982) 32 Cal. 3d 236, 247.) In applying the “reasonably germane test,” this Court has stated, “Our decisions uniformly have considered only whethereach ofthe parts of a measureis reasonably germane to a common theme, purpose, or subject, and have not separately or additionally required that each part also be reasonably germaneto one another.” (Californians For An Open Primary v. McPherson, supra, 38 Cal. 4th p. 764, footnote 29.) Proposition 66’s title, “The Death Penalty Reform and Savings Act of 2016,” succinctly presents the commontheme, purpose, and subject of 23 this initiative, to wit, the reform of the current dysfunctional death penalty postconviction litigation system and the savings in both time and money that will come with such reform. The eleven provisions ofProposition 66’s statement of findings and declarations clearly demonstrate this common theme, purpose, and subject: 1. California’s death penalty system is ineffective because ofwaste, delays, and inefficiencies. Fixing it will save California taxpayers millions of dollars every year. . Murder victims and their families are entitled to justice and due process. . Families of murdervictims should not have to wait decades for justice. These delays further victimize the families whoare waiting for justice. . Eliminating special housing for death row killers will save tens of millions of dollars every year. . Death row killers should be required to work in prison and pay restitution to their victims’ families consistent with the Victims’ Bill of Rights Reforming the existing inefficient appeals process for death penalty cases will ensure fairness for both defendants and victims. . A defendant’s claim of innocence should notbe limited, but frivolous and unnecessary claims shouldberestricted. . The state agency that is supposed to expedite secondary review of death penalty review cases is operating without any effective oversight, causing long-term delays and wasting taxpayerdollars. California Supreme Court oversight ofthis state agency will ensure accountability. . Bureaucratic regulations have needless delayed enforcement of death penalty verdicts. Eliminating wasteful spending on repetitive 24 challenges to these regulations will result in the fair and effective implementation ofjustice. 10. The California Constitution gives crime victims the right to timely Justice. A capital case can be carefully and fairly reviewed by both state and federal courts within ten years. 11. The death penalty system is broken, but it can and should befixed. These statements encompass andclearly present Proposition 66’s common themeand purpose, to seek to reform the current dysfunctional system for the enforcement of death penalty judgments in California and makethe system moreefficient, less time consuming,andless costly. The statutes added and amendedby Proposition 66 reflect and provide reasonably related means to implementthe initiative’s common theme and purposefor reform,efficiency, and cost savings. Section 3, amending Penal Code section 190.6, establishes procedures and time framesfor the litigation of death penalty appeals and habeas corpus proceedings, and mandates the Judicial Council to adopt initial rules and standards of administration designed to expedite the processing ofcapital appeals and state habeas corpus review. Section 4, amending Penal Codesection 1227, establishes a procedure for the court in which the death penalty sentence was imposedto order the carrying out of the judgmentin a specified time frameif it is being delayed for any reason other than the pendency of an appeal pursuant to Penal Code section 1239 subd. (b). Section 5, adding Penal Code section 1239.1, mandates the prompt appointment ofcounsel by the Supreme Court for indigent defendants sentenced to death, and whena substantial 25 backlog ofdeath sentencecasesexists, to allow for the appointmentofattorneys qualified for appointmentto the most serious non-capital appeals, and who meet the qualifications for capital appeals, to accept appointmentin capital cases as a condition for remaining on the court’s appointmentlist. Section 6, adding Penal Code section 1509, establishes that for habeas corpuspetitions for defendants sentenced to death should be heard by the court which imposed the death sentence unless good causeis shownforthe petition to be heard by another court, and establishes procedures and time lines to implement and govern this process. Section 7, adding Penal Code section 1509.1, provides for a prompt and focused appeal process of the decision by the court specified in Penal Code section 1509, and establishes procedures and limitations for successive habeas corpuspetitions. Section 8, adding Penal Code section 2700.1, mandates defendants sentenced to death and being held by the Department of Corrections and Rehabilitation be required to work in order to pay toward any victim restitution orderor restitution fine (which is part of the judgment in the case), and establishesdirectives to carry out this objective. Section 9, amending Penal Codesection 3600, allows for the housing of inmates sentenced to death at any California state prison that providesa level of security sufficient for that inmate. Section 10, amending Penal Code section 3604 specifies the means and establishes procedures for the carrying out of the death sentence. 26 Section 11, adding Penal Code section 3604.1, mandates that the Administrative Procedure Act shall not apply to the standards. Procedures, or regulations promulgated pursuant to Penal Code section 3604, and that the court which rendered the judgment of death has exclusive jurisdiction to hear any claim by the condemned defendantthat the method of execution is unconstitutional or otherwise invalid. Section 12, adding Penal Code section 3604.3, provides that a medical doctor may be present at an execution for the purpose of pronouncing death, and mayprovide advice for the purpose of developing an execution protocol to minimize the risk of inmate pain;that drugs, supplies, and equipment necessary to carry out a death sentence are not subject to Chapter 9, of Division 2, commencing with section 4000 ofthe Business and Professions Code; and that those specified to do so may provide said materials without prescription to the Department ofCorrections and Rehabilitation secretary or the secretary’s designee; and, further, that no licensing board or regulatory authority may sanction a party specified for participating in any action authorized by this section. Section 13, adding Government Code section 68660.5, provides for the qualification of California for the handling of federal habeas corpuspetitions under specified federal law; and for the promptcompletion ofstate habeas corpus proceedingsin capital cases; and to provide quality legal representation for inmates sentenced to death. 27 * Sections 14-15-16-17,” establish practices and procedures to return the focus and efforts of the California Habeas Corpus Resource Center to its intended purpose and function, the representation of defendants sentenced to death in a skilled and timely manner, and gives oversight to insure this intended purposeto the California Supreme Court. ¢ Section 18, amending Government Code section 68665, provides for the Judicial Council and: the Supreme Court to adopt, and continue to review, competency standardsfor the appointment of counsel in postconviction death penalty litigation, and, in doing so, avoid unduly restricting the available pool of attorneys so as to provide for timely appointmentas specified and required. Reviewing these provisions, it is clear that they meet the “reasonably germane”standardto satisfy the single subject rule. Each of the initiative’s measuresis pertinent to its common concern and general objective to reform the current postconviction death penalty system in order to makeit more efficient andless costly. In their most recentfiling in this Court, Petitioners claim that the purpose of Proposition 66 is defective under the single subject rule, because it uses the word “reform,” which according to Petitioners, “is not a description that meaningfully limits the scope ofan initiative.” (See Petitioner’s Further Reply in Support of Petition for Extraordinary Relief, at p. 6.) Perhaps understandably, Petitioners make no attempt to reconcile this assertion with this Court’s holding in Raven, supra, which upheld Proposition 115, the “Criminal Victim’s Justice Reform Act,” which had ? Section 14 amends Government Code section 68661. Section 15 adds Government Codesection 68661. Section 16 amends Government Code section 68662. Section 17 amends Government Codesection 68664. 28 66 6the stated purpose to adopt ‘comprehensive reforms... needed in order to restore balance and fairness to our criminal justice system.’ ” supra, 52 Cal.3d at 340, 346 — 349; emphasis added.) Dispositive authority can be found in this Court’s rulings on (Raven, Proposition 8 in 1982 and Proposition 115 in 1990, both notable examples of similar multi-faceted criminal justice reform initiatives that were found not to violate the single subject rule because, despite their varied collateral parts, all ofwhich were reasonably germaneto their general purpose or object. (Brosnahan v. Brown, supra, 32 Cal. 3d 236; Raven v. Dukemejian supra, 52 Cal. 3d 336.) Brosnahan considered Proposition 8, presented to the voters as, “The Victim’s Bill ofRights.” It included a wide variety ofprovisions, which dealt with: * Restitution orders ¢ Right to safe schools ¢ “Truth in Evidence” provision, which worked significant changes in evidencerules in criminal cases, affecting both the Evidence Code and the exclusionary rule * Public safety bail ¢ Useofprior convictions without limit both as evidence for impeachment, and as sentencing enhancements ¢ Changesin the rules for diminished mental capacity as a criminal defense * Creation of a new five year sentencing enhancementfor certain prior felony convictions * Right of the victim to make a statementto the court at sentencing ¢ Limits on plea bargaining 29 Prohibition of commitmentto the California Youth Authority (CYA; now DJJ, or the Division ofJuvenile Justice) for certain crimes This Court upheld Proposition 8, and this varied collection of provisions, against a single subject rule attack. See Brosnahan, supra, 32 Cal.3d at 242 — 253. Similarly, in Raven, this Court reviewed Proposition 115, presented to the voters as the “Criminal Victim’s Justice Reform Act.” This proposition likewise included a wide range of provisions: Eliminated the right to a post-indictmentpreliminary hearing Established that state constitutional provisions for criminal rights were to be interpreted in the same fashion as parallel provisionsin the U.S. Constitution, limiting the doctrine of independentstate constitutional groundsfor rights for criminal defendants Established due process and speedytrial rights for the People (prosecution) Established new rules with respect to joinder and severancein criminal cases Permitted a finding ofprobable cause at a preliminary hearing to be made based on hearsay evidence Established the Criminal Discovery Act, instituting reciprocal discovery rights for both the defense and prosecution Established rules for jury voir dire Addedcertain feloniesto the list of crimes that would trigger the felony murderrule Modified certain special circumstance murderrules, and added certain categories to the special circumstance murderlist, to qualify 30 a murder defendantfor penalties of life without parole, or the death penalty ¢ Changedthe rules for the crime oftorture ¢ Set rules of the appointment of defense counsel in a timely fashion ¢ Set rules governing the date of trial and the continuanceoftrial Against another single subject challenge, this Court upheld the proposition, and rejected the challenge. See Raven, supra, 52 Cal.3d at 342 — 349. Proposition 66,like Proposition 8 and Proposition 115, fairly discloses a reasonable and commonsenserelationship amongits specified components in furtheranceofits overall common objective to bring about reform, and thereby efficiency and cost savings, to the postconviction death penalty litigation process. Just as this Court held that Brosnahan was controlling precedent on the single subject challenge in Raven (see 52 Cal.3d at 347), so now are both Brosnahan and Raven controlling precedent for the single subject challenge in this case. The purpose and subject of Proposition 66 are no broader than thosein other initiatives this Court has upheld. Petitioners have not made, and cannot make, any convincing, principled argumentthat the subject of Proposition 66 is more overly broad, nor that the components ofProposition 66 are any more divergent from their commontheme, purpose and subject, than those upheld against single subject challenges in Brosnahan and Raven. Theclaim that Proposition 66 violates the single subject rule is without merit, and should be denied. VI.PROPOSITION 66 DOES NOT VIOLATE EQUAL PROTECTION Petitioners are also mistaken in their contention that Proposition 66 violates the equal protection clause becauseit deprives defendants sentenced to death ofthe right to pursue successive habeas corpuspetitions 31 as provided for in Senate Bill 1134, which amended Penal Codesection 1485.55. (Amended Petition, MPA, p.52.) In fact, the newly amended Penal Code section 1485.55 has nothingat all to do with successive habeas corpuspetitions. What this statute does is provide a means for defendants whohave had a habeas corpuspetition granted and also been found factually innocent in the process to obtain financial compensation through the Victim Compensation Board and the Legislature. In addition, it allows for a defendant whohas a habeascorpuspetition granted but was not found factually innocentin the habeas corpus proceeding, or who hasa prior judgment vacated pursuant to Penal Code section 1473.6, to move for a finding of factual innocence, andifgranted, to obtain financial compensation from the Victim Compensation Board and the Legislature’” Also contrary to Petitioners’ assertions, Proposition 66 does not newly create two classes ofpersons, those convicted of a capital crime and those convicted of a non-capital crime. (See AmendedPetition, MPA,p. 53.) This distinction existed long before the enactment ofProposition 66, andis well recognized in the law. Capital defendants and non-capital defendants are not similarly situated, and so do not haveto be treated in the same way. (See e.g. People v. Manriquez (2005) 37 Cal. 4th 547, 590; People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243; People v. Allen (1986) 42 Cal.3d 1222, 1286-1287). Allen is of particular significance here, in that it recognized a legitimate basis, not violating equal protection, for treating convicted capital defendants differently than non-capital defendants for purposesofa particular type ofpost-sentence review. Moreover, whena law is challenged as a violation of equal protection, courts consider whether it affords different treatment to 10 Presumably, a defendant sentenced to death, who prevails in a habeas corpus proceeding andis found factually innocent, would be entitled to the benefit provided in Penal Code section 1485.55. 32 similarly situated persons, and the standard ofreview differs depending on the class ofperson allegedly being treated differently. As explained by the court in People v. Moreno (2014) 231 Cal. App. 4th 934, 939, “Unless the law treats similarly situated persons differently on the basis of race, gender, or someothercriteria calling for heightened scrutiny, we review the legislation to determine whetherthe legislative classification bears a rationalrelationship to a legitimate state purpose.” While Proposition 66 does provide for some procedural differences and limitations for successive habeas corpuspetitions for capital defendants,there is a rational basis for these differences. As Intervenor has pointed out, the procedures and resources available to persons convicted of capital crimes is quite different and more substantial than those for non- capital convicts. Also, as noted above, and as this Court observedin its unanimousopinion in Jn re Reno, supra, 55 Cal. 4th 428, postconviction death penalty litigation is plagued by almost endless delays, which “often,” after the case has been affirmed on appeal, involve “... an exhaustion petition... [for habeas corpus] running several hundred pages... [that is] quite often...nothing more than a repetition ofpast claims and unsubstantiated assertions of ineffective assistance of counsel.” (55 Cal.4th at 514 — 515.) Proposition 66’s objective to reduce these delays by means ofprocedural rules concerning the filing of habeas claimsserves a legitimate state purpose in a rational manner, and does not constitute a violation of equal protection. VI. SEVERABILITY Petitioners seek a writ of mandate to prevent Respondents from any act to enforce Proposition 66, and an order declaring that Proposition 66 is null and void in its entirety. (See Amended and RenewedPetition for Extraordinary Relief, p. 16-17.) However, Proposition 66, section 21 33 contains an express severability clause providing that, “If any provision of this act, or any part of any provision, ...is for any reason held to be invalid or unconstitutional, the remaining provisions ... which can be given effect without the invalid or unconstitutional provision...shall not be affected, but shall remain in full force and effect, and to this end the provisions ofthis act are severable.” (Proposition 66, Section 21.) Therefore, should this Court determinethat a provision of Proposition 66 is invalid, the remaining provisions that are valid may and should be properly implemented. (Raven v. Deukmejian, supra, 52 Cal. 3d, p. 341.) VII. CONCLUSION Proposition 66 is valid on its face. It does not interfere with the original habeas corpusjurisdiction of the California Courts in death penalty litigation. It does not violate the separation ofpowers doctrine by defeating or materially impairing the constitutional and inherent powersofthe courts to resolve capital appeals and habeas corpuslitigation. It does not violate the single subjectrule. It does not violate the equal protection doctrine. It represents the sincere desire ofthose who voted to passit to bring about much needed changeto the current system of death penalty litigation. For the abovestated legal and factual reasons, the amendedpetition to have Proposition 66 declared unconstitutional and voidin its entirety should be denied. Date: March 29, 2017 Respectfully submitted, MARK ZAHNER Executive Director California District Attorneys Association 34 CERTIFICATE OF WORD COUNT Pursuant to Rules of Court 8.204 and 8.520(c), I certify that this amicus curiae briefwas prepared using a computer, thatit is proportionally spaced,that the type is 13 point, and that the word countis 6,903 words as determined by the word count feature of the word processing system. DATED: March 29, 2017 —~ MatkZabriér 35 DECLARATIONOF SERVICE I, Laura Bell, declare: I am 18 years of age or older and not a party to this matter. On March 29, 2017, I served the within “APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE CALIFORNIA DISTRICT ATTORNEYSASSOCIATION IN SUPPORT OF RESPONDENTS JERRY BROWN,inhisofficial capacity as Governorof California; KAMALA HARRIS,in herofficial capacity as Attorney Generalof California; CALIFORNIA’S JUDICIAL COUNCIL;and DOES I THROUGH Xx” in this matter by placing a true and correct copy thereof in a separate sealed envelope, with postage fully prepaid, for each addressee named below, addressed as follows: Xavier Becerra Attorney General of California Office of the Attorney General 455 Golden Gate, Suite 11000 San Francisco, CA 94102-7004 Judicial Council of California 455 Golden Gate Avenue San Francisco, CA 94102-3688 Jerry Brown Governor of California California State Capitol, Suite 1173 Sacramento, CA 95814 KentS. Scheidegger Criminal Justice Legal Foundation 2131 "L” Street Sacramento, CA 95816 Charles H.Bell, Jr. Bell, McAndrews & Hiltachk, LLP 455 Capitol Mall, Suite 600 Sacramento, CA 95814 36 David P. Mastagni Mastagni Holstedt, APC 1912 I Street Sacramento, CA 95811 Michele A. Hanisee Los Angeles County District Attorney’s Office 555 WestSth Street, Suite 31101 Los Angeles, CA 90013 Christina Von der Ahe Rayburn Orrick, Herrington & Sutcliffe, LLP 2050 Main St., Suite 1100 Irvine, CA 92614 Lillian Jennifer Mao Orrick, Herrington & Sutcliffe, LLP 1000 Marsh Rd. Menlo Park, CA 94025 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on March 29, 2017, at Sacramento, California. Laura Bell 37
