PEOPLE v. S.C. (LARA)

Petitioner’s Petition for Review with Request for Stay

Cal.April 13, 2017

S241231 SUPREMECOURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, PABLO ULLISSES LARA,JR.., SUPREME COURT FILED APR18 2017 Jorge Navarreie Clerk Real Party in Interest. Fourth Appellate District, Division Two, No. E067296 Deputy Riverside County Superior Court Nos. RIF1601012 & RIJ1400019 The Honorable Richard T. Fields, Judge (Dept. 34) The Honorable Mark E. Petersen, Judge (Dept.J-2) Telephone: (951) 777-3626; Fax: (951) 777-3724 PETITION FOR REVIEW (STAY REQUESTED) MICHAEL A. HESTRIN District Attorney County of Riverside ELAINA GAMBERA BENTLEY Assistant District Attorney KELLI M. CATLETT Chief Deputy District Attorney IVY B. FITZPATRICK Acting Supervising Deputy District Attorney DONALDW. OSTERTAG Deputy District Attorney County of Riverside 3960 Orange Street Riverside, California, 92501 Telephone: (951) 955-0870 Fax: (951) 955-9566 Email: donostertag@rivcoda.org State Bar No. 254151 Attorneys for Appellant 1 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, Ss THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, PABLO ULLISSESLARA,JR., Real Party in Interest. Fourth Appellate District, Division Two, No. E067296 Riverside County Superior Court Nos. RIF1601012 & RIJ1400019 The Honorable Richard T. Fields, Judge (Dept. 34) The Honorable Mark E. Petersen, Judge (Dept. J-2) Telephone: (951) 777-3626; Fax: (951) 777-3724 PETITION FOR REVIEW (STAY REQUESTED) MICHAEL A. HESTRIN District Attorney County of Riverside ELAINA GAMBERA BENTLEY Assistant District Attorney KELLI M. CATLETT Chief Deputy District Attorney IVY B. FITZPATRICK Acting Supervising Deputy District Attorney DONALD W. OSTERTAG Deputy District Attorney County of Riverside 3960 OrangeStreet Riverside, California, 92501 Telephone: (951) 955-0870 Fax: (951) 955-9566 Email: donostertag@rivcoda.org State Bar No. 254151 Attorneys for Appellant ] TABLE OF CONTENTS TABLE OF CONTENTSooo occccceccseseeceseseseeeseeseessesevesecassseesseassnessscarvsnvecsaseseass 2 TABLE OF AUTHORITIES00seccceseesesesessseeessscecseesesssesescsecesevsevsseesareaees 3 PETITION FOR REVIEW 000. ccceeceseeescssesseesesesseecsessssecsseascssessssvscsetescessseeavareaes 4 ISSUE PRESENTEDwoo. ecccesceesseeaesaeeenssseeessecssesesesecseseseessassessssussessesseavereaes 4 NECESSITY FOR REVIEW uocccceeeecesssssesesseseeesssesesesessasssssscecssssussccssessessaseas 5 INTRODUCTIONoooceccecscecteeecssscsaesaessnesseessssessesesesscsessecsesesssssessersvanvaceatsasaes 5 STATEMENT OF FACTS AND STATEMENTOF THE CASE uu...7 REASONS FOR GRANTING REVIEW... .cccccssssssessscsesesesseescescssscesssrenevareeceaes 1] I. REVIEW IS NECESSARY TO PROVIDE NEEDED GUIDANCE REGARDING WHETHER PROPOSITION 57 IS RETROACTIVELY APPLICABLE TO CASES LAWFULLY PENDING IN ADULT COURT BEFORE THE LAW’S EFFECTIVE DATE........ccccccccssssssssessesersssssscesessvenerens ll A. The Court of Appeal’s Opinion Was Wrongly Decided and Creates Unnecessary Confusion Regarding Application of Proposition 57 ............. 13 II. THE PEOPLE RESPECTFULLY REQUESTTHIS COURT ISSUE A TEMPORARYSTAY OF THE TRIAL COURT’S ORDER TO AVOID THE ISSUE BECOMING MOOT... occcccccsecctececescesssscsecscnseastcsarens 17 CONCLUSIONQcccc ceccceecnesseneeeeecseeaessensassesseeeaecsesesescsesssesassecatsessesssenserenses 19 b o a ae TABLE OF AUTHORITIES CASES Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 woe eee eessesereee 9,10 People v. Barrett (2012) 54 Cal.4th 1081 oo... ccccccscccssssscsscseessssscsscsssssssvereecenes 18 People v. Castello (1998) 65 Cal.App.4th 1242.0... .cccccceccccsscecssccssevssstsesseesees 18 People v. Cervantes (Mar. 9, 2017, A140464) Cal.App.Sth [pp. 66-69] [2017 Cal.App. LEXIS 204] ooo ccccccecccscsscsecsscsesesssssccssesssccssssussseneuessesseaseaneens 6 People v. Gregerson (2011) 202 Cal.App.4th 306 .......ccccccccccscsscsscsecceseecssereeaes 18 People v. Mendoza (Mar. 30, 2017, H039705) Cal.App.5th [p. 83, fn. 30] [2017 Cal.App. LEXIS 287)ccc ccccccccsscsccsesssescsscesessessecsessvesessecsssesatenasecs 6 Strauch v. Superior Court (1980) 107 Cal.App.3d 45.0... cecccescsccssecseessees 16, 17 Tapia v. Superior Court (1991) 53 Cal.3d 282.0... cceeeenseeeee 9,13, 14, 15, 17 Walker v. Superior Court (1991) 53 Cal.3d 257 w.ccccccccccscscssscsersecsceesecensvsseeseccses 18 STATUTES Penal Code § 209 oe eececccecessccescenecsseesecsseessessesscseessscsecensecssesscsessscssecsecessseasscstseussssaveussarsasesseseens 7 § 286 oo eecescsserersneecescesesseceseesessecsssssssasenseccsecsessessscsssessessesssssesscssssevssessesseesensuenaeens 7 § 288a........ veceeeseesesevsaeenseseseeessecsateneeses Veseecaceeeesecseesneeteneneesaeesesesesseesseesseecsssssecsseeeceaas 7 Welfare and Institutions Code $602 oo eccccesecesceeeeseeeseseesseesecsessecsecscensacvasssssssesecsssesssessesuecasscesseseeasvarenseeneesecates 1] OTHER AUTHORITIES California Constitution,article II, § 10... ccccccesscesscesstesssescssesserseessassesasesees 1] California Rules of Court, Rule 8.116...cccccssecesessssccsesssesesessevsecsnesess 4,17 California Rules of Court, Rule 8.500 0.0... .cccccccecccssesscecessessesesessessessveaseseeanes4,5,7 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, V. S THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, PABLO ULLISSES LARA,JR., Real Partyin Interest. TO: THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: The People of the State of California, petitioner in the above-captioned action, herebypetition this Honorable Court pursuant to California Rules of Court, rule 8.500, to grant review of the published opinion of the Court of Appealofthe State of California, Fourth Appellate District, Division Two,filed on March 13, 2017. A copy of the opinionis included as an attachmentto this Petition (hereinafter “Lara slip opn. #2”). In addition, pursuant to California Rules of Court, rule 8.116, the People respectfully request this Court issue a temporary stay ofthetrial court’s order applying Proposition 57 retroactively to this case that was lawfully pending in a court of criminal jurisdiction prior to the law’s effective date, and order the underlying proceedings in this matter stayed pending further order of this Court. ISSUE PRESENTED Dothe juvenile-law amendments enacted by Proposition 57 (“The Public Safety & Rehabilitation Act of 2016”) apply retroactively to cases pendingin a court of criminal jurisdiction before the law’s effective date? NECESSITY FOR REVIEW Since the recent enactment of Proposition 57, trial courts and appellate courts across the state have struggled with determining whetherthe juvenile-law amendments enacted by the initiative are retroactively applicable and,if so, to what extent. This hasled to considerable confusion in cases that were pending prior to the enactment of Proposition 57—ina variety of different procedural postures—and has producedsignificant unintended consequences. The published opinion in the presentcaseis one ofthree recent published Court of Appeal decisions attempting to address this novel issue of statewide importance. As discussed below,those three opinions, while consistent in someaspects, are conflicting in other aspects, and have produced continued confusion in the lower courts regarding Proposition 57’s application. A grant of review is necessary in this case, pursuant to California Rules of Court, rule 8.500(b)(1), in order to secure uniformity of decision andto settle this important question of law. Absent action by this Court, the lower courts will remain without clear guidance regarding the proper application of Proposition 57, and the current confusion will continue to negatively impact criminal prosecutions acrossthestate. INTRODUCTION On November 8, 2016, the voters passed Proposition 57 (“The Public Safety & Rehabilitation Act of 2016”), which became immediatelyeffective November9, 2016. Among other things, Proposition 57 amended various Juvenile-delinquencystatutes to require juvenile courts to decide whether prosecution against a minor should be transferred from juvenile court to a court of criminaljurisdiction. Specifically, the initiative eliminated mandatory and discretionary direct filing by prosecutors, and eliminated previous presumptions regarding a minor’s fitness for juvenile court. The lower courts have struggled with determining whether the juvenile-law amendments enacted by Proposition 57 are retroactively applicable to cases lawfully pending in adult court prior to the law’s effective date. For example, in the present case, the trial court ruled that the electorate intended Proposition 57 to apply retroactively, after which it granted real party’s request to “reverse-transfer” the case to juvenile court. The Court of Appeal applied a contrary analysis, holding that Proposition 57 is notretroactive, but that the trial court’s ruling was proper because the new law can be applied prospectively to any casethat is pendingpriorto trial. (Lara slip opn. #2, at pp. 4-5.) In People v. Cervantes (Mar. 9, 2017, A140464)_ Cal.App.Sth [pp. 66-69] [2017 Cal.App. LEXIS 204] (Cervantes), the First Appellate District, Division Four, went a step further and ruledthat not only is Proposition 57 properly applied to any case that is pendingpriortotrial, but also to any case pendingprior to sentencing. In this regard, Cervantes is in direct conflict with the published opinion in the present case, which held that Proposition 57 can only be applied up to the pointthat a defendant is “‘broughtto trial,” defining that as the momentthe parties are ready to proceed and a panel of prospective jurorsis summoned and sworn. (Lara slip opn. #2, at p. 33.) In People v. Mendoza (Mar. 30, 2017, H039705) Cal.App.Sth [p. 83, fn. 30] [2017 Cal.App. LEXIS 287] (Mendoza), the Sixth Appellate District ruled that Proposition 57 is not retroactive and therefore cannotbe applied to a defendant whose appeal is pending. Mendoza, which cited both Cervantes and Lara, “express[ed] no opinion on the possible applicability of Proposition 57 to cases wheretrial had not commenced beforethe initiative took effect.” (Mendoza, supra, at p. 83, fn. 30.) Asis apparentin the differing reasoning employed by,andthediffering results reached in, each of these three recent published opinions, thetrial courts remain without clear guidance regarding Proposition 57’s applicability. Furthermore, a numberof the underlying arguments beinglitigated in courts across the state—argumentsthat were raised bythe parties in the present case— remain unresolved. Until this Court takes action and addresses this novel issue of statewide importance,a gross injustice will continue to face the parties attempting to navigate the criminaljustice system following Proposition 57. Equallyat risk are thetrial courts attempting to determine the new law’s application to pending cases, probation departments attempting to expeditiously comply with the new requirements, and law enforcemententities tasked with housingcriminal defendants and juvenile offenders. For these reasons, the People respectfully request this Court grant review to secure uniformity of decision andto settle this important question of law. (Cal. Rules of Court, rule 8.500(b)(1).) STATEMENT OF FACTS AND STATEMENT OF THE CASE Onvarious occasions in 2014 and 2015, real party sexually assaulted Jane Doe, who was seven andeight years old at the time. (Exhibits 2 & 5.)' On one occasion,real party pointed a gun at Jane Doeandstated, “If you tell your Mom or Dad,I will shoot you with [this] gun.” (Exhibit 5, at p. 9.) On a subsequent occasion,real party pointed a gun at Jane Doe and forced herto orally copulate him, threatening that he would shoother in the head if she did not comply. (Exhibit 5, at pp. 14-15.) On another occasion,real party forcibly and painfully sodomized Jane Doe, causing her to bleed from her anus. (Exhibit 5, at pp. 16- 21.) Real party sodomized Jane Doe multiple times. (Exhibit 5, at pp. 17-18.) On June 10, 2016, following a preliminary hearing, the Riverside County District Attorney filed an information charging real party with kidnapping for rape, oral copulation, and sodomy(count 1; Pen. Code, § 209, subd. (b)(1)); forcible oral copulation with a child under 14 years of age (count 2; Pen. Code, § 288a, subd. (c)(2)(B)); and two counts of forcible sodomy (counts 3 & 4; Pen. Code, § 286, subd. (c)(2)(B)). The information (and the previous complaint) was ' Citations to exhibits are to those exhibits filed in support of the petition for writ of mandate/prohibition in the Court of Appeal. 7 directly filed in adult court within the meaning of then-applicable Welfare and Institutions Code section 707, subdivision (d)(2)(A). (Exhibits 1 [superior court case print], 2 [information], & 5 [reporter’s transcript of preliminary hearing].) On November8, 2016, the voters passed Proposition 57 (“The Public Safety & Rehabilitation Act of 2016”), which became immediately effective November9, 2016 (Cal. Const., art. II, § 10, subd. (a) [an initiative approved by the voters takes effect the day after the election unless the measure provides otherwise].) On November16, 2016, real party filed a motion requesting his case be “transferred” to juvenile court for a “fitness hearing” in light of Proposition 57. (Exhibit 3.) On November22, 2016, the People filed an opposition to the motion to transfer the case to juvenile court, arguing that Proposition 57 was not retroactive to cases that were lawfully pending in adult court prior to the new law’s effective date. (Exhibit 4.) On November29, 2016, respondent court conducted a hearing regarding Proposition 57’s application to this case. (Exhibits 1 [superior court case print] & 7 [reporter’s transcript of hearing].) Following argumentbythe parties, respondent court granted real party’s motionto transfer the case to juvenile court, ruling that the juvenile-law amendments enacted by Proposition 57 are retroactively applicable to cases pending in adult court before the law’s effective date. (Exhibit 7, at pp. 14-16.) At the conclusion of the hearing, respondent court granted the People’s request for a three-weekstayto file a petition for writ of mandate in an effort to obtain guidance from the Court of Appeal. (Exhibit 7, at pp. 16-17.) On December2, 2016, the People filed the instant petition for writ of mandate/prohibition in the Court of Appeal and requested a further stay of the trial-court proceedings. On December16, 2016, the Court of Appeal issued an orderstating, in its entirety, as follows: Real party in interest is requested to file, within 10 days from the date of this order, an informalletter responseto the petition for writ of mandate filed by the People on December2, 2016. [§]] A copy of the informal response shall be served uponpetitioner. [] Petitioner shall have 10 days after service to respond thereto. On December20, 2016, real party filed an informal responseto the petition for writ of mandate/prohibition. On December29, 2016, the People filed an informalreply. On January 19, 2017, without issuing an order to show cause, a request for formal briefing, or notice under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, the Court of Appeal, Fourth Appellate District, Division Two, issued a published opinion denying the petition. Specifically, the Court of Appeal held that Proposition 57 was properly applied in the present case because the new law enacted a procedural change “governing the conductoftrials.” (Lara slip opn. #1, at p. 5, citing Tapia v. Superior Court (1991) 53 Cal.3d 282, 289 (Tapia).) Becausetrial had not yet occurred in this case, the Court of Appeal concluded the changes enacted by Proposition 57 could be properly applied prospectively. (Lara slip. opn. #1, at p. 5.) . On February 15, 2017, the Court of Appeal issued an orderstating as follows: On the court’s own motion, REHEARING IS ORDERED,thereby vacating the opinion filed January 19, 2017, and setting the causeat large in this court. (Cal. Rules of Court, rule 8.268(a)(1), (d).) Good cause appearsin that the court has determined that a fuller treatment is required ofthe issues related to the denial of a petition by an opinion after issuance of a notice that the court may issue a peremptory writ in the first instance. (See Opn.filed Jan. 29, 2017, p. 2.) Because the cause has beensetat large again, and to give the parties the opportunity to address these 9 issues and the merits more thoroughly, real party in interest is invited to serve andfile, within 10 days of this order, an informal letter responseto the petition for writ of mandate filed by the People on December2, 2016. Petitioner may serve andfile an informalletter reply within 10 days after the filing of real party’s response. The court may issue a peremptory writ in the first instance, or the court may denythe petition by a written opinion on the merits that determines a cause and constitutes law of the case. The following day, on February 16, 2017, real party filed an informal response. On February 23, 2017, petitioner filed an informal reply. On March 13, 2017, the Court of Appeal filed a second published opinion. The distinction between the two opinionsrelated to the procedural history of the writ proceedings, and the Court of Appeal’s previous issuance of a reasoned opinion without providing notice to the parties under Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 178. The Proposition 57 analysis contained in the second Lara opinionis identical to the Proposition 57 analysis in the first Lara opinion. (See Lara slip opn. #1, at pp. 3-11; Lara slip opn. #2, at pp. 28-36.) To date, the Court of Appeal has not ruled on the People’s request for a further stay of the trial-court proceedings.” 2 On December 21, 2016, because there was nointervening stay issued by the Court of Appeal, the trial court formally “certified” the matter for juvenile court and ordered the defendant released from custody unless the People filed a juvenile delinquency petition within 48 hours. The adult court proceedings were suspended indefinitely. On December 22, 2016, the People filed a juvenile delinquencypetition against real party that mirrored the previously-pending charges in adult court. The People also filed a request for a transfer hearing. On December 23, 2016, a detention hearing was conducted in juvenile court in case number RIJ1400019. On January 25, 2017, the Probation Departmentfiled a 43-page “fitness report” recommendingthat real party be transferred back to adult court. On March 9, 2017, the juvenile court conducted a transfer hearing during which multiple witnessestestified. Following argumentbythe parties, the juvenile court took the matter under submission. On March 30, 2017, the juvenile court issued a written decision denying the prosecution’s request to transfer real party back to adult 10 " R R R o o g r S O R E REASONS FOR GRANTING REVIEW I. REVIEW IS NECESSARY TO PROVIDE NEEDED GUIDANCE REGARDING WHETHER PROPOSITION 57 IS RETROACTIVELY APPLICABLE TO CASES LAWFULLY PENDING IN ADULT COURT BEFORE THE LAW’S EFFECTIVE DATE Proposition 57 was passed by the voters on November8, 2016, and became immediately effective November 9, 2016. (Cal. Const., art. II, § 10, subd. (a) [an initiative approved by the voters takes effect the day after the election unless the measure provides otherwise].) As relevant here, the declared purposes of Proposition 57 included “[s]top[ing] the revolving door of crime by emphasizing rehabilitation, especially for juveniles”; and “[r]equir[ing] a judge, not a prosecutor, to decide whether juveniles should betried in adult court.” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141.) As stated in the legislative analysis provided to the voters, Proposition 57 was intended to change state law “‘to require that, before youths can be transferred to adult court, they must have a hearing in juvenile court”and to ensure that youths “accused of committing certain severe crimes would no longer automatically be tried in adult court...” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) analysis by the legislative analyst, p. 56.) To achieve those purposes, Proposition 57 made various changesto the Welfare andInstitutions Code, such as eliminating mandatory anddiscretionary direct filing ofjuvenile cases in adult court, and eliminating various presumptions that a juvenile is not fit to be prosecuted in juvenile court. Specifically, Proposition 57 eliminated section 602, subdivision (b), which mandated that juveniles 14 years of age or older who personally commit murder with a special circumstance, or who personally commit one of a numberof court. A contested jurisdictional hearing is currently scheduled in juvenile court for April 20, 2017. 3 All further unspecified statutory references are to the Welfare and Institutions Code. 11 enumerated sex offenses, be prosecuted in adult court. Proposition 57 also eliminated section 707, subdivision (d), which gave prosecutors discretion to directfile a juvenile case involving a serious or violent felony in adult court. In addition, Proposition 57 eliminated all presumptions that a minor with a felony criminal history, or a minor who commits a particular serious orviolent felony,is not fit for juvenile court. Specifically, Proposition 57 eliminated the following presumption that was contained in section 707, subdivision (a)(2)(B): A juvenile 16 years of age or older who commits a new felony after having committed two or more felonies when he or she was14 years of age or older is presumed unfit for juvenile court. Proposition 57 also eliminated the following presumption that was contained in section 707, subdivision (c): A juvenile 14 years of age or older who commitsa serious orviolent felony as enumerated in section 707, subdivision (b), is presumed unfit for juvenile court. Finally, Proposition 57 eliminated the term “fitness hearing” and replacedit with the term “transfer hearing.” (§ 707, subd.(a).) Following the enactment of Proposition 57, there are two paths by which a juvenile case maybetransferred to a court of criminal jurisdiction: (1) the commission of any felony crime by a minor who was16 years of age or older at the time of the crime;or (2) the commission of an offense enumeratedin section 707, subdivision (b), by a minor who was 14 or [5 years of age at the time of the crime. (§ 707, subd. (a)(1).) The case mustbefiled in juvenile court and the prosecutor may make a motion to transfer the minor from juvenile court to a court of criminaljurisdiction. (/bid.) Upon such a motion, the juvenile court shall order the probation officer to submit a report on the behavioral patterns and social history of the minor. (/bid.) Following consideration of the probation officer’s report, in addition to any other relevant evidence that the prosecution or the minor submit, the juvenile court shall decide whether the minor should be transferred to a court of criminal jurisdiction. (§ 707, subd. (a)(2).) In making its determination, the court shall considerthe criteria set forth in section 707, subdivision (a)(2)(A)-(E). (§ 707, 1?“a _ subd. (a)(2).) Specifically, the court must consider: (1) The degree of criminal sophistication exhibited by the minor; (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) The minor’s previous delinquenthistory; (4) Success of previous attempts by the juvenile court to rehabilitate the minor; and (5) The circumstancesandgravity of the offense alleged in the petition to have been committed by the minor. (§ 707, subd. (a)(2)(A)-(E).) A. The Court of Appeal’s Opinion Was Wrongly Decided and Creates Unnecessary Confusion Regarding Application of Proposition 57 In its published opinion, the Court of Appeal held that Proposition 57 altered the “conduct of trials” and, becausethetrial in this case had yet to occur, applying Proposition 57 amounted to prospective application rather than retroactive application. (Lara slip opn. #2, at pp. 29-30.) The court’s reasoning was incorrect for a numberofreasons. Initially, to reach its holding, the court relied upon an overbroad interpretation of this Court’s decision in Tapia. In Tapia, this Court considered whether the many criminal-law amendments enacted by the then-recent Proposition 115 (“Crime Victims Justice Reform Act’) applied to prosecutions for crimes committed before the measure’s effective date. (Tapia v. Superior Court, supra, 53 Cal.3d at p. 297.) Tapia drew a distinction between: (1) new provisions which change the legal consequences of criminal behaviorto the detriment of defendants; and (2) new provisionsthat address the “conduct of trials,” which this Court went on to explain included any changealtering a procedural aspect of a criminal prosecution. (/d. at pp. 297-300.) Whereas the former cannot be applied to conduct that occurred before the measure’s effective date, the latter can be properly applied prospectively to procedural aspects of a criminal prosecution that have yet to take place when the measure became effective. (/bid.) 13 - Tapia explained that a number ofthe changes enacted by Proposition 115 were procedural changesfalling into the “conduct of trials” category, including, amongothers: (1) the elimination of postindictment preliminary hearings; (2) the admissibility of hearsay at preliminary hearings; (3) the requirementfor reciprocal discovery; (4) altering the rules regarding severance; and (5) altering the manner in which voir dire is conducted. (Tapia v. Superior Court, supra, 53 Cal.3d at p. 299.) Tapia went on to hold that these procedural “conductoftrial” changes could be properly applied prospectively so long as the altered procedural aspect of the proceedings had not yet occurred on the date the measure becameeffective. (/d. at pp. 299-300.) In the present case, the Court of Appeal properly held that the juvenile-law amendments enacted by Proposition 57 were “conductof trial” changes. (Lara slip opn. #2, at p. 30, quoting Tapia v. Superior Court, supra, 53 Cal.3d at p. 289 [“Requiring a juvenile judge to assess whetherreal party in interest is tried in adult court strikes us as a ‘law governing the conductoftrials.’”’].) Where the Court of Appeal went wrong, however, is assuming that any “conductoftrials” change can be properly applied prospectively so long as the actualtrial itself, whether that be a benchtrialor jury trial, has yet to occur. (Zara slip opn. #2,at p. 30 [“Because Proposition 57 can only applyto trials that have yet to occur, it can only be applied prospectively.”].) That position is belied by Tapiaitself. Asstated, Tapia involved a numberof “conductoftrials” changes that had nothing to do with the actualtrial itself, such as requiring pretrial reciprocal discovery and altering the requirements relating to preliminary hearings. (Tapia v. Superior Court, supra, 53 Cal.3d at p. 299.) Particularly instructive hereis this Court’s analysis regarding the pretrial reciprocal discovery requirement enacted by Proposition 115. As Tapia stated: “Application of the [pretrial reciprocal] discovery provisions to compel production of evidence obtained . . . before Proposition 115’s effective date would be retroactive underthe principles we have already discussed.” (/d. at p. 300.) 14 The same can besaid of Proposition 57. The changes enacted by Proposition 57 have no bearing whatsoeveronthetrial itself. Rather, the changes relate entirely to procedural requirements that must take place before prosecution against a minor maybetransferred into adult court. Once a caseis lawfully pendingin adult court, the only mannerin whichto apply those pretransfer procedural requirements would be to do exactly whatthe trial court did in this case: Halt the pending adult-court proceedings and send the case backwardsto juvenile court, after which necessary preconditions must be satisfied before the case may be returned to whereit started. As Tapia dictates, that would be an improperretroactive application of the new law. (See Tapia v. Superior Court, supra, 53 Cal.3d at pp. 299-300.) In addition, to further enhanceits position, the Court of Appeal quoted from Tapia: “Such statute “‘is not made retroactive merely because it draws upon 999995facts existing prior to its enactment. . . (Lara slip opn. #2, at p. 29, quoting Tapia, supra, 53 Cal.3d at p. 288.) This language strikes at the very essence of Tapia, which wasa consideration of whether the newly enacted law could properly be applied to cases involving underlying conductthat occurred prior to the law’s effective date. (See Tapia, supra, 53 Cal.3d at p. 287 [“we granted review to determine whetherthe provisions of Proposition 115 should be applied to prosecutions of crimes committed before its effective date.”].) Stated another way, the focus of Tapia was on whether newlawsthat affect future procedural acts regarding the conductoftrials can be applied without violating ex post facto principles regardless of when the underlying crime occurred. (/bid.) Here, however, there is no ex post facto concern, noris there any delineation based on whenthe underlying crime was committed. Similarly, the date offiling will not always dictate whether Proposition 57 applies because a case lawfully filed in juvenile court with a request for a fitness hearing prior to Proposition 57 would still be subject to the new standards for fitnessif that fitness hearing has yet to occur. The key focus is on whether a case was or was not 15 lawfully pending in adult court prior to the enactment of Proposition 57. Forall cases filed after the new law’s effective date, and all cases awaiting hearing in juvenile court after the new law’s effective date, the requirements set forth in Proposition 57 are fully applicable. But for cases that were lawfully pending in adult court prior to the enactment of Proposition 57, relevant legal authority mandates that the new law cannot be applied retroactively. Finally, the Court of Appeal cited and heavily relied upon Strauch v. Superior Court (1980) 107 Cal.App.3d 45 (Strauch). (Lara slip opn. #2 at pp. 31- 32.) In Strauch, a medical malpractice complaint wasfiled without a then- required accompanyingcertificate of merit. (Strauch, supra, 107 Cal.App.3dat p. 47.) After the complaint wasfiled, however, the law was amended to permit the latefiling of a certificate of merit, after which the moving party complied with the newly-amended law. (/bid.) In considering whether the new law could properly apply, the Court of Appeal held that because the law amended a proceduralstatute, and because the movingparty easily cured the defect by subsequently complying with the new law, the law was being applied prospectively. (/d. at p. 49.) Following from this, the Court of Appeal here reasoned that Proposition 57’s amendmentof the filing requirements for juvenile cases can be applied prospectively to any pending case. (See Lara slip opn. #2, at pp. 32.) What the court failed to address, however,is that Strauch considered statutory expansion of a procedural requirement, broadeningtheability of the filing party to comply by allowing the filing party to submit a certificate of complianceafter the law’s effective date andafter theinitial filing of the case. (Strauch v. Superior Court, supra, 107 Cal.App.3d at pp. 47-49.) Conversely, Proposition 57 narrowed a procedural requirement, mandating the prosecutionto file in juvenile court before the case may moveto adult court. Unlike Strauch—which permitted relevant procedural actions after the law’s effective date and afterfiling of the complaint— Proposition 57 mandated procedural requirements necessary before a case can moveinto adult court. Once caseis already properly pending in adult court, 16 however, there is no wayto apply the procedural requirements enacted by Proposition 57 without applying those requirements retroactively. In fact, Tapia specifically cited Strauch for the proposition that the effect of newly-enacted statutes is ““prospective in nature since they relate to the procedure to be followed 399in thefuture.” (Tapia, supra, 53 Cal.3d at p. 288, quoting Strauch v. Superior Court, supra, 107 Cal.App.3d at p 49, emphasis added.) Accordingly, the Court of Appeal’s reliance upon Strauch was misplaced. For the reasons stated above, applying Proposition 57 to a case that was lawfully pending in adult court prior to the law’s effective date is, by its very nature, a retroactive application of the law. The Court of Appeal’s contrary ruling not only misapplies previous authority from this Court, it creates additional and unnecessary confusion regarding the application of Proposition 57, and fails to address many of the issues causing the most uncertainty acrossthe state. Furthering the confusion are the divergent analyses employed in the present case, Cervantes, and Mendoza. The differences in these recent published opinions leave the trial courts without clear guidance regarding Proposition 57’s applicability. Accordingly, petitioner respectfully requests this Court grant review to secure uniformity of decision andto settle these important questions oflaw. Il. THE PEOPLE RESPECTFULLY REQUEST THIS COURT ISSUE A TEMPORARYSTAY OF THE TRIAL COURT’S ORDER TO AVOID THE ISSUE BECOMING MOOT Pursuant to California Rules of Court, rule 8.116, the People respectfully request this Court issue a temporary stay of the trial court’s order applying Proposition 57 retroactively to this case that was lawfully pending in a court of criminaljurisdiction prior to the law’s effective date, and order the underlying proceedings in this matter stayed pending further order of this Court. Asstated, the juvenile court recently conducted a transfer hearing and—overpetitioner’s objection and contrary to the recommendation of the probation department— 17 ordered real party to remain in juvenile court. A contested jurisdictional hearingis currently scheduled for April 20, 2017. Should this case proceed to a jurisdictional hearing in juvenile court while the underlying issuesare still being resolved at the appellate level, it could irreparably harm the People’s ability to subsequently bringreal party totrial in adult court. In addition, failure to stay the trial court’s order would result in the parties and the court expending limited resources to conduct a potentially- unnecessary jurisdictional hearing, would burden the victim and her family with testifying against real party at such a hearing, and could potentially result in the underlying issues becoming moot. Accordingly, this Court should exerciseits discretion to temporarily stay the trial court’s order and any further proceedings in this case pending furtherorder of this Court. (See, e.g., Walker v. Superior Court (1991) 53 Cal.3d 257, 266 [court has the inherent powerto insure the orderly administration ofjustice]; People v. Castello (1998) 65 Cal.App.4th 1242, 1247- 1248 [court’s inherent powers are wide,andit is the primary function of the courts to see that justice is done amonglitigants].) Finally, to the extent the juvenile court’s order denying petitioner’s request to transfer real party back to adult court results in the underlying Proposition 57 issues becoming moot, this Court should exercise its discretion to address these issues of continuing public importancethat are capable ofrepetition yet evading review. A case becomes moot when a court ruling can have nopractical effect or cannot provide the parties with effective relief. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.) However, the court has discretion to address issues on the merits, despite their mootness, where issues are of continuing public importance and capable of repetition yet evading review. (People v. Barrett (2012) 54 Cal.4th 1081, 1092-1093, fn. 7.) The issues raised in the present case are ones that, even if moot, will be repeated and will potentially evade review. 18 CONCLUSION Accordingly, for the reasons stated, the People respectfully request this Court grant the Petition for Review andissue a temporarystay ofthetrial court’s order pending further order of this Court. Dated: April 11, 2017 See . ) DONALD W. OST G X74 Deputy Distfict Attéfney Respectfully submitted, MICHAEL A. HESTRIN District Attorney County of Riverside ELAINA GAMBERA BENTLEY Assistant District Attorney KELLI M. CATLETT Chief Deputy District Attorney IVY B. FITZPATRICK Acting-S ising Deputy District Attorney h a Lo / { 4 County of Riverside 19 CERTIFICATE OF WORD COUNT Case Nos. E067296/RIF1601012/RIJ1400019 The text of the PETITIONFOR REVIEWconsists of 4,738 words as counted by the Microsoft Word Program used to generate the said PETITION FOR REVIEW. Executed on April 11, 2017 (v a a aeee Respectfully submitted, MICHAEL A. HESTRIN District Attorney County of Riverside ELAINA GAMBERA BENTLEY Assistant District Attorney KELLI M. CATLETT Chief Deputy District Attorney IVY B. FITZPATRICK Acting Supervising Deputy District Attorney | 4 DON . OSTERTAG Deputy District Attorney County of Riverside 20 DECLARATION OF SERVICE Case Name: People v. Pablo Ullisses Lara, Jr. Case Nos. E067296/RIF1601012/RIJ1400019 I, the undersigned, declare: I am employed in the County of Riverside, over the age of 18 years and not a party to the within action. My business address is 3960 OrangeStreet, Riverside, California. Myelectronic service addressis appellate-unit@rivcoda.org. That on April 11, 2017, I served a copy of the within, PETITION FOR REVIEW — STAY REQUESTED,byelectronically serving a copy ofthis documentin the Court of Appealvia the True Filing website (www.truefiling.com) and electronically serving the following parties: LAURA ARNOLD . Riverside County Superior Court Attorney for Pablo Ullisses Lara,Jr. Attn: Hon. Richard T. Fields LOPDAppellateUnit@rivco.org Attn: Hon. Mark E. Petersen appealsteam(@riverside.courts.ca.gov Appellate Defender’s,Inc. eservice-court@adi-sandiego.com Attorney General’s Office sdag.docketing@doj.ca.gov FOURTH DISTRICT STEVEN S. MITCHELL COURT OF APPEAL mitchelllaw4u@gmail.com Case No. E064099 Division Two (served via TrueFiling) I declare under penalty of perjury pursuant to the laws of the State of os | Dated: April 11, 2017 elhheNom DECLARANT |" i) California that the foregoing is true and correct. 21 Filed 3/13/17; on rehearing CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION TWO THE PEOPLE, Petitioner, E067296 V. (Super.Ct.No. RIF1601012) THE SUPERIOR COURT OF OPINION RIVERSIDE COUNTY, Respondent; PABLO ULLISSES LARA,JR., Real Party in Interest. ORIGINAL PROCEEDINGS;petition for writ of mandate/prohibition. Richard T. Fields, Judge. Petition denied. Michael A. Hestrin, District Attorney, Donald W. Ostertag, Deputy District Attorney, for Petitioner. No appearance for Respondent. Steven S. Mitchell; Steven L. Harmon, Public Defender, Laura Arnold, Deputy Public Defender, for Real Party in Interest. Having read and consideredthe petition, the informal response we requested, and additional briefing as described below,as well as the record provided by both parties, we conclude the petition lacks merit. Our order requesting an informal response notified the parties that “[t]he court may issue a peremptory writ in thefirst instance, or the court may deny the petition by a written opinion on the merits that determines a cause and constitutes law of the case.” All parties received “due notice” (Code Civ. Proc., § 1088), and “it appears that the petition and opposing papers on file adequately address the issues raised by the petition, that no factual dispute exists, and that the additional briefing that would follow issuance of an alternative writ is unnecessary to disposition ofthe petition.” (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cai.3d 17 8 (Paima).) In reliance on these rules, and because weagreethat the issue posed bythe petition is an important one warranting speedy resolution, we now resolvethe petition by wayof a formal written opinion denyingrelief. At the outset, we pause to explain the procedure we haveutilized on this petition. Weemphasize that we do nottake this approach lightly, nor do we mean to imply an intention on our part to adopt this procedure as our routine practice. (See, e.g., Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223 [urging courts not to allow the expedited Palma procedure to becomeroutine], disapproved on other groundsas stated in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724; Ng v. Superior Court (1992) 4 Cal.4th 29, 34-35 (Ng) [same].) We acted as we did becausethis petition was particularly exigent, as explained post. On November8, 2016, the voters passed Proposition 57.! As relevant to this petition, Proposition 57 eliminated the People’s ability to directly file charges against a juvenile offender in adult court and instead authorized the People tofile “‘a motion to transfer the minor from juvenile court to a court of criminaljurisdiction.” (Welf. & Inst. Code, § 707, subd. (a)(1).) Upon receiving such a motion, the juvenile court is to decide whether the minor should betransferred to adult court? based on statutorily-prescribed criteria. (Welf. & Inst. Code, § 707, subd. (a)(2).) Prior to the passage of Proposition 57, the People directly filed a complaint against real party in interest, a minor, in adult court under the authority of formersection 707, subdivision (d)(2), of the Welfare and Institutions Code. A preliminary hearing occurred on May26, 2016. On June 10, 2016, the People filed an information charging real party ! This enactmentis also known as The Public Safety and Rehabilitation Act of 2016. Forease of reference, we shall refer to it as “Proposition 57” in this opinion. Moreover, when we use the term Proposition 57 in the course ofthis opinion, werefer, unless otherwise specified, only to those portions of the enactmentthat are relevant to this petition, namely, the portions of Proposition 57 that eliminated the People’s ability to initiate criminal cases against juvenile offenders anywhere but in the juvenile court. 2 The statutory phrase is “a court of criminal jurisdiction.” (See, e.g., Welf. & Inst. Code, § 707, subd. (a).) As do the People and as did the voter pamphlet supporting Proposition 57, we tend to use the vernacular, adult court. We dothis for ease of reference and meannodisrespect. in interest with felony violations of Penal Codesections 209, subdivision (b)(1), 286, subdivision (c)(2)(B), and 288a, subdivision (c)(2)(B). On November16, 2016, real party in interest filed a motion requesting “a fitness hearing in juvenile court pursuant to recently enacted legislation via Proposition 57.” After considering written opposition from the People, who argued Proposition 57 could not be applied to real party in interest’s case retroactively, the trial court granted the motion on November 29, 2016. Noting that the issue was “novel,”thetrial court stayed its order until December 20, 2016, so the People could seek appellate intervention. The People’s petition in this case followedthree days later on December2, 2016. It sought an emergency stay and asserted there would be “widespread confusion and continuedlitigation” if the trial court’s order in this case stood. In addition,the petition introduced evidence that there were 57 other direct-file cases pending, and that 10 motions to transfer to juvenile court had already been received. On December16, 2016, we requested an informal response, which we received on December20, 2016. Petitioner filed a reply on December29, 2016. On December6, 2016, the People filed People v. Superior Court (Sanchez) (case No. E067311) in this court. They raised the sameissue raised in this petition, and, as they did in the petition in this case, requested an emergency stay. The petition asserted there were “widespread confusion, continuedlitigation, and jurisdictional and procedural uncertainties attendant with the trial court’s order.” On December9, 2016, the People filed a separate motion for stay in Sanchez. That same day, we issued an order denying the request for stay but indicating we would resolve the merits of the petition by separate order. On December 16, 2016, we issued anotherorder, this time that the Sanchez petition would be considered with the petition in this case, since they both raised identical issues. We also requested an informal response from the real party in interest in Sanchez. That response wasfiled on December 20, 2016; a reply followed on December 29, 2016. On December 7, 2016, the People filed People v. Superior Court (Mayer) (case No. E067326), which raised the sameissuesas this petition and Sanchez. The Mayer petition also requested an emergency stay, which we denied the following day. As we did in Sanchez, we indicated we would separately resolve the merits of the petition. On December16, 2016, we ordered Mayer considered with this petition and requested an informal response. As in Sanchez, the response and reply werefiled on December 20 and 29, 2016, respectively. eople filed People v. Superior Court (Negrete) (case No. E067345) on December 9, 2017. As in the three previouspetitions, they requested an emergencystay, which, on December 12, 2016, we denied indicating we would separately resolve the merits. On December 16, 2016, we ordered Negrete considered with this petition and requested an informal response. Weagain received a response on December 20, 2016, and a reply on December 29, 2016. The four responses andreplies filed on December 20 and 29, 2016, are substantially identical. Each of these petitions raised the sameissueasthe petition in this case, and each relied on the same declaration attesting to the numberofdirect-file cases that were pending in the countyat the time. In Negrete, the People first offered as an exhibit an e- mail string, including a message from sitting superior court judge, in support of their assertion that immediate appellate action was necessary to prevent further confusion in the trial courts. The judge’s e-mail indicates “that the Prop 57 remandsto juvenile court are causing some significantstress since there are no specific protocols that are in place,” and that “there is going to be some confusion.” The People’s e-mail exhibit implies this state of confusion was expectedto last until some kind of appellate intervention occurred. Finally, the People filed People v. Superior Court (E.P.) (case No. E067384) on December 16, 2016. On December28, 2016, we denied the petition’s request for immediate stay, indicated we would separately resolve the petition on the merits, and requested an informal response. Wereceived a response on January 4, 2017, and a reply on January 13, 2017. Asthe foregoingillustrates, the People presented us withfive rapid-fire, nearly identical petitions in a two-week span, each with a request for immediate stay on the ground that exigent relief was necessary because rampant confusion was occurring in the trial court. We were also aware that delaying the publication of an opinion resolving the issue the People’s petitions presented could have drastic consequencesfor real parties in interest, or, for that matter, for any minor who wasfacing prosecution under a complaint that had been directly filed in adult court but had not been transferred to juvenile court; each ofthe petitions sought an emergencystay on the ground that otherwise a dangerous offender would be released after the transfer to juvenile court took effect. The issue the People’s petitions presented was concrete and easily addressed in a single published opinion. Moreover, the issues were well framed, the record was complete, and our only task was to construe Proposition 57, which is a legal question that does not depend on the specific facts of this or any of the other four petitions we ordered considered withit. Finally, as we explain in the final section of this opinion, resolution of this petition required us to do no morethan apply “well-settled principles of law [to] undisputed facts.” (See, e.g., Ng, supra, 4 Cal.4th at p. 35 [listing criteria justifying granting a mandamuspetition using the accelerated Palma procedure].) For all of these reasons, we expedited the petitions as much as possible by ordering them considered together, and by foregoing a hearing we found would have been unnecessary. Wethen published an opinion on the merits on January 19, 2017.3 Therein, we cited Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 414-417 (Frisk), for the , of the case by requesting an informal response, receiving and considering the response and reply, publishing an opinion on the merits, and explicitly informing the parties of our conclusion that this opinion created a cause and law ofthe case, indicating the opinion was therefore something more than a so- called “summary denial.” (See Kowis v. Howard (1992) 3 Cal.4th 888, 893-894 (Kowis) [a summary denial does not create a cause].) 3 In an abundanceof caution, we note that, due to clerical error, the opinion failed to explicitly indicate that it would not becomefinal for 30 days. (Cal. Rules of Court, rule 8.490(b)(1).) We saw no reason to modify the opinion basedon clerical error (Code Civ. Proc., § 473, subd. (d)) only to grant rehearing and replace our previous published opinion with this one. Upon further reflection, we realize this might be viewed as a significant departure from what has become something of a maxim in writs jurisprudence, namely,that a mandamuspetition maybe granted on a peremptory basis without the setting of an order to show cause, thereby creating a cause and constituting law of the case, but that a petition that is denied withoutthe setting of an order to show causefails to create a cause and cannot constitute law of the case. In 1990, we “point[ed] out the anomaly” in Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 900, footnote 2. As the anomalystill has not been resolved despite the passage of more than 25 years, we granted rehearing on our owninitiative. (Cal. Rules of Court, rule 8.268(a)(1).) Our order specifically invited the parties to brief the merits of the petition and indicated that we might either grant the petition on a peremptory basis or deny it with an opinion after deeming ourselves to have created a cause.4 We now publish ourbest attempt to explain 4 Weuse the vernacular andoften refer to this order requesting a response as a Palmanotice, even though wetold the parties we were as likely to deny as to grant the petition. The orderreads: “On the court’s own motion, REHEARING IS ORDERED,thereby vacating the opinion filed January 19, 2017, and setting the cause at large in this court. (Cal. Rules of Court, rule 8.268(a)(1), (d).) []] Good cause appears in that the court has determined that a fuller treatment is required of the issues related to the denial of a petition by an opinion after issuance ofa notice that the court may issue a peremptory writ in thefirst instance. (See Opn.Filed Jan. 29, 2017, p. 2.) [§]] Because the cause has beenset at large again, and to give the parties the opportunity to address these issues and the merits more thoroughly, real party in interestis invited to serve andfile, within 10 days ofthis order, an informalletter response to the petition for writ of mandate filed by the People on December2, 2016. Petitioner may serve and file an informalletter reply within 10 daysafter the filing of real party’s response. The court may issue a peremptory writ in the first instance, or the court may denythe petition by a written opinion on the merits that determines a cause and constitutes lawof the case.” Real party in interest filed an informal response on February 16, 2017, and the People filed a reply on February 23, 2017. Neither objected to any aspect of our procedure, and each argued the merits of the 8 why we conclude wehad the authority to deny the petition as we have done. In other words, we explain why the logic of the authorities we discuss herein compels the conclusion that, when wefollow the procedure we used here in an important and exigent case such as this one, we create a cause and law ofthe case by taking jurisdiction over the petition, filing an opinion on the merits, explicitly informingthe parties of our view on the creation of a cause and law ofthe case, and, to the greatest extent possible, reserving full periods for rehearing and modification. (Cal. Const. art. VI, § 14.) 1. Creation ofa cause The cause language comesfrom Article 6 of the California Constitution. (See, e.g., Cal. Const., Art. VI, §§ 10 [rules regarding jurisdiction of causes and authorization for the court to commenton evidence,testimony, and credibility of witnesses as “necessary for the proper determination of the cause”]; 12 [rules for transfer and review “causes” by the Supreme Court]; 14 [rules for appellate decisions on causes}.) Particularly relevant here is section 14 of Article VI, which reads, in pertinentpart: “Decisions of the Supreme Court and courts of appeal that determine causesshall be in writing with reasonsstated.” parties’ positions in the same way they had argued their positions in the earlier briefs. The newbriefing has not changed our view of the merits, such that, with the exception of some minorstylistic changes, the discussion section of this opinion remains unchanged from the opinion wefiled on January 19, 2017. In addition, on March 10, 2017, real party in interestfiled a letter bringing to our attention a recently published opinion, People v. Cervantes (March 9, 2017, A140464)_—sCal.App.5th___ [2017 Cal.App.LEXIS 204], that also addresses Proposition 57’s impact on juvenile offenders who had complaints directly filed against them in adult court prior to the enactmentof the new law. Wehaveread the case and concludedit does not changeouranalysis of either the procedural or the substantive issues discussed in this opinion. 9 Despite its inclusion in California’s Constitution, our search for a well-established definition of the term “cause” in this context seems to have produced as manyquestions as answers. As the California Supreme Court itself has noted, “the term ‘cause’ is not susceptible to precise definition.” (/n re Rose (2000) 22 Cal.4th 430, 449 (Rose).) In fact, the Rose court found the term had one meaningin the context of transferring causes, and another in contexts such as “orders denying petitions for review in ordinary civil and criminal cases.” (/d. at p. 451.) Still, despite noting that “not every matter presented to the court for a ruling .. . is a cause that requires a written decision”(id. at p. 452), the court did not proposean affirmative definition of“cause.” Wereweless inclined to truly get to the bottom of this issue, we might seize on Funeral Dir. Assn. v. Bd. ofFuneral Dirs. (1943) 22 Cal.2d 104, 106, in which the California Supreme Court wrote: “It is only after an alternative writ has been issued that the matter becomesa ‘cause,’ the determination of which, i.e., the granting or denying of a peremptory writ, requires a written decision.” (See also Oak Grove SchoolDist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 694 [same].) Were this obviouslystill the law, our task would be complete. In light of later authorities, however, we fail to see how the issuance of an alternative writ 1s a precondition to the creation of a cause regardless of whethera petition is granted or denied, at least when a court follows a procedure such as the one weare following here. The Supreme Court has said: “When an appellate court considers a petition for a writ of mandate or prohibition, it is authorized in limited circumstancesto issue a 10 peremptory writ in the first instance, without having issued an alternative writ or order to show cause. (Code Civ. Proc., §[§] 1088, 1105; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; ... Palma).)” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236 (Lewis).) This statement cannot be true if the issuance of an alternative writ or order to show cause is necessary to a matter’s being a “cause.” In other words, once the Palma procedure becamevalid, and courts were allowed to grant peremptory petitions without issuing an alternative writ or order to show cause, engaging in either kind of issuance should only be a sufficient, not a necessary, condition for creating a cause. The Palma court noted that “the decision to grant a peremptory writ, unlike the summary denial of a petition seeking a writ, is determinative of a ‘cause’ within the meaning ofarticle VI, section 14.” (Palma, supra, 36 Cal.3d at p. 178, fn. 6.) Our oth notified the parties that we are resolving the issue presented on the merits, and that we consider our opinion to have created a cause for the reasons we discuss. What we publish todayis therefore as “determinative” as an opinion granting a petition for writ of mandate on a peremptory basis under Palma. Our search for an explanation as to why we did not therefore create a cause has been in vain, as no authority we have found hasidentified a right of which we have deprived the parties by not issuing an alternative writ or order to show causebefore publishing an opinion denying the petition, just as we would have done had wegranted the petition. We are again aware that we cannot use an expedited proceduresuchasthis 11 one except in extraordinary cases, but we are also confident this case wassufficiently exigent to qualify. Wehavefoundseveral cases asserting that a Court of Appeal has three and only three options whenit receives a petition for writ of mandate: “(1) deny the petition summarily, before or after receiving opposition; (2) issue an alternative writ or order to show cause; or(3) grant a peremptory writ in the first instance, after compliance with the procedure set forth in Palma.” (Lewis, supra, 19 Cal.4th at p. 1239; see, e.g., Kowis, supra, 3 Cal.4th at pp. 893-894; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024 (Bay Development).) Not one of these cases explains whya written opinion denying a mandamuspetition on the merits after a Palma notice requesting a response cannotcreate a cause. Phrased differently, not one of these cases offers a reason for treating the granting of a petition for writ of mandate differently from the denial of a petition for writ of mandate on a peremptory basis when a Court of Appeal has followed the procedure wedescribe herein. We notethe right to oral argument cannotfill this gap. As Lewis explained, “the statutes and rules governing peremptory writs of mandate and prohibition do not require an appellate court to afford the parties an opportunity for oral argumentbefore the court issues such a writ in the first instance, and in the past this court and the Courts of Appeal have issued peremptory writs in the first instance without holding oral argument.” (Lewis, supra, 19 Cal.4th at pp. 1236-1237.) We see, and we have foundin our research, no reason to treat the denial of a mandamuspetition, after a Pa/ma notice but without an 12 alternative writ or order to show cause, in an opinionthattells the partiesit is creating a cause, any differently from the granting of a mandamuspetition on a peremptorybasis,at least with respect to whether oral argumentis required. Weare awarethat the last sentence in the passage we quoted in the previous paragraphis: ‘Our holding in this regard applies only to those proceedings in which an appellate court properly issues a peremptory writ ofmandate or prohibitionin thefirst instance... .” (Lewis, supra, 19 Cal.4th at p. 1237, italics added.) Still, for the following reasons, this does not meanthat oral argument is dispensable in an appropriate case only whenthe court grants, but not whenit denies, a writ petition. First, the Lewis court did not squarely considerany issues regarding the denial of a petition for writ of mandate; in that case, this court, acting as the intermediate appellate court, had granted a mandamuspetition, and the writ petitioner argued, as relevant here, the court lacked the authority to do so without holding oral argument. (Lewis, supra, 19 Cal.4th at pp. 1238-1239.) “ ‘It is axiomatic that cases are not authority for propositions not considered.” ” (Un re Marriage ofCornejo (1996) 13 Cal.4th 381, 388.) Second, and moreto the point, Lewis did not give a reason whythe denial of a writ petition on a peremptory basis using the procedureat issue in this case should be treated any differently from the granting of one. It is noteworthy that the Lewis court explicitly said its holding “does not affect the right to oral argument on appealor after the issuance of an alternative writ or order to show cause.” (Lewis, supra, 19 Cal.4th at p. 1237.) Choosing the right to oral argument on appeal andthe right to ora! argument when an 13 alternative writ or order to show causeissuesas the things to explicitly exclude from the reach ofits opinion sheds no light on why oral argument would be required before a writ is denied after a Palma notice in an opinion on the merits that indicatesit creates a cause, but not before that same petition could be granted. For these reasons, our decision notto allow oral argument should not prevent us from finding that we created a cause, because, under Lewis, oral argument was not something we were obligated to provide. Moreover, “Denying an opportunity fororal argument before the issuance of a peremptory writ of mandate or prohibition in thefirst instance would be unfair to the parties only if the court’s use of the accelerated Palma procedure were unwarranted. The remedy for such unfairness is not uniformly to require oral argumentbefore a peremptory writ is issued in the first instance, but rather to restrict the use of that procedure to the narrow category of cases described above.” (Lewis, supra, 19 Cal.4th at p. 1261.) We have already described why wethink the importance and exigencyof this case would have authorized us to grant a peremptory writ of mandate without having issued an order to show causeoralternative writ. Nordid we deprive the parties of notice and opportunity to be heard, as we followed the procedure described in Palma. (Code Civ. Proc., § 1088 [requiring notice before issuance of a peremptory writ in the first instance]; Palma, supra, 36 Cal.3d at pp. 179-180.) In fact, petitioner in this case had more opportunity to be heard before receiving our decision than the real party in interest on a petition for writ of mandate would ordinarily have. Had we granted the petition on a peremptory basis, we most 14 likely would have doneso after receiving only onebrief fromthe party that did not prevail. Here, the People had an opportunitytofile two briefs, the petition and the reply. In addition, we considered the briefs and the record filed in conjunction with four other petitions raising the same issue, such that we actually read 10 briefs from the Petitioner. Wethenre-opened briefing after publishing and recalling an opinion that explained our views. The issues were especially well framed, and the record wasas well developed as it could be, especially given that resolution of the issue posed is a question of law. (See, e.g., California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699 [the interpretation of a statute “is a question of law’].) Onceagain, then, we have searched for, but not found, a definition of “cause” that we could easily apply to this case. We know that issuing an alternative writ or an order to show causewill create a cause. (E.g. Funeral Dir. Assn. v. Bd. ofFuneral Dirs., supra, 22 Cal.2d at p. 106.) We knowthat granting a peremptory writ under Palma will also determine a cause. (Palma, supra, 36 Cal.3d at p. 178.) We know that a summary denial will not create a cause. (E.g. Kowis, supra, 3 Cal.4th at pp. 893-894.) However, it appears westill do not know howthese rules apply to an opinion that denies petition for writ of mandate, but does so in a mannerthat is no less summary than the mannerin which we would have issued a peremptory writ. Weare mindful of Kowis’s conclusion that the Court of Appeal there did not create a cause because “[1]t issued neither an alternative writ nor a peremptory writ in the first instance.” (Kowis, supra, 3 Cal.4th at p. 894.) This conclusion followsif it is true 15 that a Court of Appeal lacks the ability to issue anything other than a “summary denial” whenit denies a mandamuspetition without issuing an alternative writ or order to show cause. But this assumption appears to have less validity when we considerthat the authority the Kowis court cited in the above-quoted statement wasthe following quotation: “It is settled law that an appellate court’s action denying without opinion a petition for a writ of mandateor prohibition is not the determination of a ‘cause’ requiring oral argument and a written opinion.” (People v. Medina (1972) 6 Cal.3d 484, 490,italics added; see, e.g., Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 640 [citing Kowis for proposition that, “The denial without opinion ofa petition for a writ of mandate orprohibition is not res judicata”]; People v. Carrington (1974) 40 Cal.App.3d 647, 649 [no law of the case effect attaches when a “petition for a writ has been denied by the Court of Appeal without opinion” (originalitalics)].) Asthis case and the authorities we nowdiscussillustrate, the denial ofa petition for writ of mandate without an order to show causeis not necessarily a denial without an opinion. These authorities show the better-reasoned rule is that: “Unless the court summarily denies the petition or the respondent performsthe act specified in an alternative writ, the matter becomes a ‘cause’ that must be decided ‘in writing with reasonsstated.’ ” (Lewis, supra, 19 Cal.4th at p. 1241, italics added.) Ourapproachillustrates the extent to which the answerto this debate hinges on what is and is not a summary denial. The alleged maximofjurisprudencethat led us to share our thoughts on procedure in such detail appears to assumethat any denial of a writ 16 petition that was not preceded by the issuance ofan alternative writ is a summary denial, and therefore not a cause. We acknowledgethat this appears to be the view of the drafters of California Rules of Court, rule 8.490(b)(1), which ascribes immediatefinality to only two types of “decisions regardingpetitions for writs within the court’s original jurisdiction: [§] (A) An order denying or dismissing such a petition without issuance of an alternative writ, order to show cause, or writ of review; and [{] (B) An order denying or dismissing sucha petition as mootafter issuance of an alternative writ, order to show cause, or writ of review.” In contrast, “[a]ll other decision in a writ proceeding are [generally] final 30 days after the decision is filed.” As we now explain, however, the logic of the authorities we discuss yields the conclusion that we havediscretion, in rare and appropriate caseslike this one, to create a cause by issuing a Palmanotice andfiling a written opinion that denies a mandamus petition on the merits and notifies the parties of our intention to create a cause. In othcr words, we conclude we some cases, to create a cause byfiling a denial opinion that is something other than a summary denial. What, then, is asummary denial? Of the authorities we located, Lewis comes closest to providing a definition of general application: “The summarydenial of a petition for a prerogative writ properly is viewed as a refusal by the court to exercise original jurisdiction over the matter.” (Lewis, supra, 19 Cal.4th at p. 1260, fn. 18; see Rose, supra, 22 Cal.4th at p. 445 [“An order summarily denying a petition for writ of mandate or prohibition generally reflects a discretionary refusal to exercise original 17 jurisdiction over a matter that properly may be pursuedin the lower courts.”].) In this case, we did far more than decline jurisdiction. We ordered four similar petitions considered with this case, issued five Palma notices, read five responses andfive replies that we would not have hadto read had we immediately denied the petition, separately denied stay requests and an independent motion for stay with indications that we would resolve the petitions on the merits separately, published an opinion on the merits and told the parties we were creating a cause, granted rehearing on our owninitiative to better explain our position regarding this case’s procedural aspects, requested briefing, and then published this opinion, which also expressly tells the parties that we have accepted Jurisdiction. Ifa summary denial is a refusal to take jurisdiction, this opinion is not a summary denial. Kowis, thoughit does not purport to deny the phrase, “summary denial,” directly offers information about whatis and is not sufficient in this regard, as it squarely considered whether the denial of a mandamuspetition had created a cause. (Kowis, supra, 3 Cal.4th at p. 894.) There, “the Court of Appeal . . . after obtaining and considering opposition . .. summarily denied the petition with a brief supporting statement. It issued neither an alternative writ nor a peremptory writ in the first instance.” (/bid.) The entire opinion denying the petition read: “Thepetition for writ of mandate and request for stay and the opposition have been read and considered by Presiding Justice Kremerand Justices Wiener and Huffman. Thepetition is denied. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892.)” (Ud. at p. 892.) 18 Wehave no quarrel with> the Kowis court’s statementthat, “A short statement or citation explaining the basis for the summary denial does not transform the denial into a decision of a cause.” (Kowis, supra, 3 Cal.4th. at p. 895; see Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 230 [“While it is true that the court accompanied the summary denial with an explanatory comment, we do not regard that comment as a formal opinion (Cal. Const., art. VI, § 14)... .”].) At bottom, our responseis that the opinion we publish today, like the one weinitially published, is far more than a “brief supporting statement.” (Kowis, supra, 3 Cal.4th at p. 894.) Of course, an opinion’s length cannot be the determining factor in whether the denial of a writ petition without the issuance of an order to show causecreates a cause. Otherwise, “unnecessary litigation” would result. (Kowis, supra, 3 Cal.4th at p. 898.) As Kowis noted, “If each summary denial must be parsed to determineif it was necessarily n moarite arifthere wae came a le evnlanatinon the merits, or if there was some other possible explanatior 1 5 5 L parties would often be uncertain whether a denial established law of the case until the appellate court decided the question during the later appeal. Such uncertainty could often be unfair as well as inefficient.” (/bid.) For this reason, the Kowis court rejected the “sole possible ground” rule, which had previously allowed an exception to the default rule that the summary denial of a writ petition does not create law of the case if the only 5 Nor could we “quarrel with” an opinion from the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450.) We emphasize that we are attempting no such thing in this opinion. Rather, we try to explain why,in our view, the patchwork of cases discussing the creation of a cause in the contexts of mandamus petitions leaves room for the procedural approach we havetaken. 19 way the petition could have been denied was on the merits. (/d. at pp. 897-899.) While rejecting this rule and disapproving several cases that followed it, the Kowis court concluded: “A summary denial of a writ petition does not establish law of the case whether or not that denial is intended to be on the merits or is based on some other reason.” (/d. at p. 899.) We agree that preventing unnecessarylitigation is a noble goal. Still, it seems there is no need to fear additionallitigation about whether an opinion does or does not create a cause if we take the time to expressly share our thoughts on that subject with the parties. When we do, there are no questions about what we intended. Instead, we have madeclear what we have done; and this opinion explains why wefind we have authority to act as we have. Respectfully, then, while we acknowledge Kowis’s holding and the frameworkthe case establishes, we find them inapplicable here, because the opinion we -“” aA Vocal seatedrig “eqgmethine mor an” 4 sammary tal (ri k coanpr al Ann fi 10W is “somethi ig more than” a summary Genial. (risk, Supra, 200 Cal.A p.4ttle p. 417 [“The ‘something more’ that distinguishes this matter is our discretionary determination to issue a formal opinionin the course of an accelerated writ proceeding where our denial by opinion1s a decision on the merits.”].) Bay Development also supports our conclusion that an opinion denying a writ petition is not always a summary dental, even if no alternative wnit or order to show cause issues. (Bay Development, supra, 50 Cal.3d at pp. 1024-1025.) In that case, the California Supreme Court considered whether a “37-page written opinion” issued bythis court fell under the rule for timeliness after a petition is summarily denied even though 20 no alternative writ ever issued. (/d. at p. 1023.) The court held that the summary denial rule “was intended to apply only to summarydenials of writ petitions by the Court of Appeal, and not to cases—suchas this case—in which the Court of Appealsets a writ matter for oral argument, hears oral argument and resolves the matter by full written opinion.” (/d. at p. 1024.) It is true that we had set the matter for oral argument in Bay Development, but we did not issue an alternative writ or an order to show cause. (/bid.) Nonetheless, the court found the summary denialrule did not apply to our opinion, even thoughthe opinion denied the writ petition. (/d. at pp. 1023-1024.) In this case, we did not hold oral argumentbefore filing an opinion denying the petition on the merits. However, Lewis, which postdates Bay Developmentby nineyears, held that oral argumentis not required. Therefore, this distinction is one without a difference, and we continue to read Bay Development to give usat least some authority to deny a mandamuspetition, without an order to show causeoranalternative writ, and yet still issue a “decision” that amounts to an “opinion” that creates a cause. (Cal. Rules of Court, rule 8.490(b)(1), (2) [discussing orders denying writ petitions, and then “[a]ll other decision in a writ proceeding”; cf. rule 8.490(b)(2)(B) [“If a Court of Appealcertifies its opinion for publication or partial publication after filing its decision . . . (italics added)].).© In Frisk’s words: “It is true that the Supreme Court in Bay Development ® The finality rule that applies to writs further supports this conclusion,asit gives us discretion to order finality of even a summary denial as if the denial were not summary at all. (Cal. Rules of Court, rule 8.490(b)(1) [denials without issuance of alternative writ or order to showcause are immediatelyfinal “[e]xcept as otherwise ordered bythe court”|.) 21 recommended that appellate courts in the future ‘should follow the contemplated statutory procedure by issuing an alternative writ or order to show cause beforesetting a writ matter for oral argument.’ (Bay Development, supra, 50 Cal.3d at p. 1025, fn. 8; see also Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 228, fn. 2 (Guardino).) Neither Bay Development nor Guardino, however, contemplated the exigencies encompassed by the accelerated Palma process.” (Frisk, supra, 200 Cal.App.4th at p. 416.) Once again, we agree that the “summary denial” of a writ petition does not create a cause. (E.g. Kowis, supra, 3 Cal.4th at pp. 893-894.) Rather, the point we makeis that the authorities we just discussed confirm our conclusion that this opinion qualifies as more than a summary denial. We now describe the necessary elements of the rule we havediscerned from the authorities discussed and show how, when we apply this rule to the facts of this case, we are confident in our conclusion that we have created a cause. First, the court must take jurisdiction over the merits of the petition. (Lewis, supra, 19 Cal.4th at p. 1260.) In this case, we issued several orders, including Palma notices, considered the briefs and record on five separate petitions, expedited our procedure because the issue presented was both urgent andeasily resolved using settled principles of law, granted rehearing and requested morebriefing, and published an opinion answering the interpretive question posed on the merits. In our view, we indisputably took jurisdiction. h o t M Second, the court must issue an opinion on the merits. (Frisk, supra, 200 Cal.App.4th at p. 417; Bay Development, supra, 50 Cal.3d at pp. 1024-1025.) Here, we published two opinionsafter telling the parties we would resolvethe petition later on the merits. Again, we undeniablysatisfied this criterion. Finally, the court should give some consideration to the parties’ expectations, as this is another theme that seems to run through the cases discussing creation of a cause. Asdiscussed ante, wefind that explicitly telling the parties that we conclude we have created a cause, and why, answers Kowis’s concerns about endless litigation over these issues. The Bay Developmentcourt also considered the parties’ expectations when finding that the rules regarding summary denials were not intended to apply to our 37- page opinion after oral argument. (Bay Development, supra, 50 Cal.3d at p. 1025, fn. 7.) Frisk does the same by emphasizing the importanceof allowing the parties an opportunity for rehearing. (frisk, supra, 200 Cal.App.4th at pp. 416-417.) Explicitly telling the parties that the court considers itself to have created a cause with an explanation as to why, seemsto usto resolve the issues discussed in the cases we have analyzed. (Kowis, supra, 3 Cal.4th at p. 892 [summary denialsaid only that decision was on the merits with a citation to a single case without explanation.].) In other words, if a Court of Appeal plans to denya petition for mandamus without issuing an alternative writ or an order to show cause while intending to create a cause, it should signal its conclusion that its opinion, while a denial, is nonetheless something other than a summary denial. It is also helpful, when possible, to preserve the right to rehearing, such 23 that objections to a Court of Appeal’s procedure are most likely to start in that court, whilestill preserving a meaningful right to certiorari to the California Supreme Court. Wehave again compliedin full; we note we granted rehearing on our owninitiative with the specific goal of reopening the period in which the parties may request rehearing, as well as the period offinality, we invited briefing on all issues presented, and we explicitly told the parties that we might do exactly what we concludethis opinion does. (Cal. Rules of Court, rule 8.268(d).) Based on the foregoing, we conclude we havecreated a cause by proceeding as we did in this action. We next consider the related issue of whether the doctrine of law of the case applies. 2. Applicability ofthe law ofthe case doctrine “The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomesthe law of the case and must be adhered to throughoutits subsequent progress, both in the lower court and upon subsequent appeal... , and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ ” (Kowis, supra, 3 Cal.4th at pp. 892- 893.) This doctrine also applies to pretrial writ proceedings in whicha petition is granted on a peremptory basis under Palma. (Id. at p. 894.) With respect to the interaction between the creation of a cause and law ofthe case, the Kowis court explained: “If a writ petition is given full review by issuance of an 24 alternative writ, the opportunity for oral argument, and a written opinion, the parties have received all the rights and consideration accorded a normal appeal. Granting the resulting opinion law ofthe case status as if it had been an appellate decision is appropriate. But if the denial followeda less rigorous procedure, it should not establish law of the case.” (Kowis, supra, 3 Cal.4th at p. 899.) Here, our opinion denying the petition followed a procedure “less rigorous” than the one described by the Kowis court, as we did not issue an alternative writ or allow oral argument. First, though, Kowis was not faced with whether oral argument was necessary before law of the case could apply; it was only asked to decide whether an order denying a writ petition, which contained nothing but a citation to a single case with a statement that the decision wason the merits but without any indication as to whetherit created a cause or why, created law of the case. (Kowis, supra, 3 Cal.4th at p. 892 [“We granted review on the question whether the Court of Appeai erred in applying the law ofthe case doctrine based on a summary denial of an earlier petition for writ of mandate.”].) In fact, Lewis noted Kowis indicated the issue of whether oral argument was required was undecided. (Lewis, supra, 19 Cal.4th at p. 1255.) Second, we again emphasize that, under Palma and Lewis as discussed ante, neither oral argumentnor an alternative writ or order to showcauseis a necessary condition to creating a cause. Wetherefore fail to see why the absenceofeither would bar application of the law of the case doctrine, when wesatisfy the criteria discussed in the previous section. If an alternative writ, an order to show cause, and oral argument 25 mayall be bypassed in appropriate cases when we grant a peremptory writ, then weare unable to find a reason why “the issuance of a peremptorywrit in the first instance by an appellate court is a final determination of a cause on the merits” (Lewis, supra, 19 Cal.4th at p. 1255), but the denial of a writ petition after employing the same procedureisnot. Consequently, we conclude that law of the case has been established in this matter. In finishing our conclusions about the procedure we have used, we note one major distinction between this case and Frisk. The petition there concernedthetrial court’s failure to act on a peremptory challenge to a judge (Code Civ. Proc., § 170.6), and the fact that a petition for writ of mandate is the only means of appellate review of such a challenge (Code Civ. Proc., § 170.3, subd. (d)) helped support the court’s conclusion that — law of the case applied. (Frisk, supra, 200 Cal.App.4th at p. 415.) The Frisk court explained: “Because writ relief is the only authorized modeof appellate review for peremptory challenges, our decision, in contrast to routine summary denials, is binding on the parties, and cannotbe revisited on a subsequent appeal. [Citation.] As such, we judge the petition on its procedural and substantive merits, and our determination whether to grant or deny the petition “is necessarily on the merits.’ ” (/bid.) Here, we are unawareofanystatute that prevents the People from seeking review of the trial court’s order transferring real party in interest to juvenile court on appeal. Still, we do not see howthis affects the applicability of the law of the case doctrine, which, as we have explained, applies when “an appellate court ‘states in its opinion a principle or rule of law necessaryto the decision.’ ” (Kowis, supra, 3 Cal.4th at p. 893.) 26 As we have already explained, we created a cause by taking jurisdiction, filing an opinion on the merits, and explaining to the parties our analyses and conclusions about the expedited procedure we used. Based on the foregoing, we find, and explicitly tell the parties, that we deem this opinion to be law of the case. We do so with the knowledge that we have doneourbest to ensure that the periods for rehearing andfinality that would apply to an opinion granting the petition will applyto this opinion. In closing our views on the procedural path we have chosen,’ we again remind the parties that we in no wayintendfor this to become our standard operating procedure. As we have labored to explain, this case is uniquely important and exigent. We therefore 7 Webriefly reject two potential objections to our approach. Oneis that we could have accomplished the sametask(i.e. the creation of a cause and law of the case) by issuing an order to show causeat a specially set hearing, with the return and traverse due on an expedited schedule. In response, we note the filing of a return andtraverse is expected to be more laborious than the preparation and submission of an informalletter brief, such that requests for extensions of time are both expected and routinely granted. (Cf. Cal. Rules of Court, rule 8.487(a)(1) [preliminary response may beserved within 10 days] with Cal. Rules of Court, rule 8.487(b)(2) [return usually due within 30 days]). In addition, the hearing takes time and judicial resources that we conserved by adopting the approach wehavedescribed. The foregoing analysis explains why this case was uniquely suited for expedition and demonstrates that we have endeavoredto find a procedural path that preserves the samerights the parties would have had if we had grantedthepetition on a peremptory basis under Palma. A second argument against creating a cause out of a denial after issuance of a Palma notice is that a Palmanoticetraditionally implies that the court is leaning toward issuance of the peremptory writ, and not that it might instead deny the petition in a way that creates a cause. We can understand how standard Palma notice, which simply implies the court might grant the petition, could affect the presentation of the reply. No suchissuearises in this case, however, since our Palma notice explicitly told the parties we were considering denying the petition in an opinion we deemedto have created both a cause and law ofthe case. 27 gave the parties an answerto the issue the petition raised in the most expeditious way we concluded the law would allow. For the foregoing reasons, we conclude that we have created a cause and law of the case by publishing this opinion after the procedural route we chose. We nowturn to the merits of the petition. DISCUSSION The People contend the trial court misapplied the law whenit held that Proposition 57 could be applied to cases that were directly filed against juvenile offenders in adult court before the newlaw took effect. Because we disagree that applying Proposition 57 to require a juvenile court judge to assess whetherreal party in interest will go to trial in adult or juvenile court constitutes a retroactive application of the new law, we deny the petition. Weagree with the People in part: changes in the law ordinarily apply prospectively but not retroactively. (See, e.g., Pen. Code, § 3.) “It is well settled that a newstatute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 (Tapia).) Wealso agree with the petition that /n re Estrada (1965) 63 Cal.2d 740 (Estrada), the case that spawned a well-known exception to the default rule of prospectivity, does not apply here. After all, Estrada does no more than “inform[] the rule’s application in a specific context by articulating the reasonable presumptionthat a legislative act mitigating the punishmentfor a particular criminal offense is intended to apply to all 28 nonfinal judgments.” (People v. Brown (2012) 54 Cal.4th 314, 324.) Real party in interest does not argue that, and we therefore do not consider whether, Proposition 57 amounts to a legislative reduction in the punishmentfor a crime. Where wepart ways with the People is in defining what sorts of applicationsof a newlawwill actually count as “retroactive” in the sense we have been discussing. After all, “[a] statute does not operate retroactively merely because someofthe facts or conditions upon whichits application depends cameinto existencepriorto its enactment.” (Kizer v. Hanna (1989) 48 Cal.3d 1, 7-8.) The Tapia court, considering whether a voter initiative that changed who (the Judge rather than counsel) and under what circumstances (only in conjunction with challenges for cause) jurors would be examined during voir dire, described how this understanding of retroactivity intersects with changes to the procedural rules governing criminal trials. Rejecting a contention that the rule changes required by the voter initiative could only apply to prosecutions for crimes committed after the effective date of the new law,the court explained: “Even though applied to the prosecution of a crime committed before the law’s effective date, a law addressing the conductoftrialsstill addresses conduct in the future. This is a principle that courts in this state have consistently recognized. Such a statute ‘ “is not made retroactive merely becauseit draws upon facts existing prior to its enactment.... [Instead,] [t]he effect of such statutes is actually prospective in nature since they relate to the procedure to be followed in the future.” ’ [Citations.] For this reason, we havesaid that ‘it is a misnomerto designate [such statutes] as having retrospective effect.’ ” (Tapia, supra, 53 Cal.3d at 29 p. 288.) Thus, “a law governing the conductoftrials is being applied ‘prospectively’ whenit is applied to a trial occurring after the law’s effective date, regardless of when the underlying crime was committed.” (/d. at p. 289.) Thelegislative changes at issue in this petition fit easily into this framework. Requiring a juvenile judge to assess whetherreal party in interest is tried in adult court strikes us as a “law governing the conductoftrials.” (Tapia, supra, 53 Cal.3d at p. 289.) Because Proposition 57 can only apply to trials that have yet to occur, it can only be applied prospectively. Arguing we should not apply this definition from Tapia to the facts of this case, the People seize on the following language from People v. Grant (1999) 20 Cal.4th 150, 157 (Grant): “In general, application of a lawis retroactive only if it attaches new legal consequencesto, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determiningretroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.” From this, the People reason that “Proposition 57’s procedural changes can only be applied to ‘new’ and ‘future’ proceedings [citation] and cannot be applied to procedural aspects that have already taken place, such as the previous direct-filing of a case in the superior court or the conduct of a previously-held fitness hearing.” This position is unavailing. Although real party in interest is now under the jurisdiction of the juvenile court, the People may moveto have him transferred to adult court if they think he meetsthe criteria for trial there. (Welf. & Inst., § 707, subd. (a).) 30 Even assumingthe decision to directly file a complaint against real party in interest in adult court is in fact the last act before Proposition 57 can be applied, the People’s position fails because they have not identified how asking them to get the juvenile court’s permission before proceedingto a final adjudication in adult court “attaches new legal consequencesto, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.” (Grant, supra, 20 Cal.4th at p. 157.) For comparison, we look to Strauch v. Superior Court (1980) 107 Cal.Ap.3d 45, 49 (Strauch), which the Tapia court cited with approval. (Tapia, supra, 53 Cal.3d at p. 289.) Thereal party in interest there filed a medical malpractice complaint against the petitioner. (Strauch, at p. 47.) The petitioner movedto strike the complaint because, when the complaint wasfiled, Code of Civil Procedure section 411.30 provided that “no complaint [for medical malpractice] shall be acceptedfor filing unlessit is accompanied by” a certificate of merit, and no certificate had been filed. (Strauch, at pp. 47-48.) The trial court denied the motion, granted the real party in interest relief under Code of Civil Procedure section 473, and allowedthe late filing of a certificate of merit. (Strauch, at p. 47.) After that ruling, the Legislature amended Code of Civil Procedure section 411.30 to specify that the certificate of merit did not need tobefiled until the date of service of the complaint, and that the defect was only subject to demurrer. (Strauch, at p. 48.) On writ review of the order denying the motionto strike, the court held it was appropriate to apply the amendedstatute in support ofthetrial court’s order because the law was procedural, only, and applying it would “not create a new causeofaction or deprive a malpractice defendant of any defense on the merits or affect vested rights.” (/d. at p. 49.) 31 In Strauch, as here, a statute created a right (the right to dismissal absent a certificate of merit in Strauch, and the right to directly prosecute a juvenile in adult court here) that was later abrogated by legislative amendment. The petitionerin Strauch fought to keep that right, just as the People here do. In each case, however,the petition fails to showhowthelegislative change affects “vested rights.” (Strauch, supra, 107 Cal.App.3d at p. 49; cf. Aetna Casualty & Surety Co. v. Industrial Accident Com. (1947) 30 Cal.2d 388 (Aetna Casualty) [new law allowing increased recovery from the Industrial Accident Commission could not be applied to claimants whoseinjuries arose before the newlaw’s effective date because the increased compensation due bythe claimants’ employers wasa substantive rather than procedural change]; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 [Proposition 51, which rejected traditional joint and several liability on tort claims in favor ofliability that is proportionate to fault, could not be applied retroactively to causes of action that arose prior to the law’s effective date because it decreased the amountof recovery a plaintiff could reasonably obtain].) Havingto file a motion to get the juvenile court’s permission to try a minor in adult court does not strike us as the sort of changed legal consequences the Grant, Strauch, and Tapia courts had in mind. Moreover, we are unconvinced that the act ofdirectly filing a case against a juvenile offender in adult court without the permission of the juvenile court is the last act prior to application of Proposition 57. For this portion of our analysis, we look to the materials in support of Proposition 57. (See, e.g., Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901 [official ballot pamphlet useful in interpreting voter initiatives].) 32 Asboth parties have noted, the ballot pamphlet supporting Proposition 57 contains two express purposesrelated to juvenile offenders: “Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles”; and “Require a judge, not a prosecutor, to decide whether juveniles should betried in adult court.” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, p. 141, Public Safety and Rehabilitation Act of 2016, § 2.) In addition, the legislative analysis supporting Proposition 57 went so far as to state: “the only way a youth could betried in adult court is if the juvenile court judge in the hearing [under Welfare andInstitutions Code section 707, subdivision (a)]] decides to transfer the youth to adult court.” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016), analysis by legislative analyst, p. 56.) A juvenile offenderis not “tried in adult court” merely because the People have filed a complaint against him orher there. Rather, “past cases ‘compel the holding that an accusedis “broughtto trial” . .. when a case has been calledfortrial by a judge whois normally available and ready to try the case to conclusion. The court must have committed its resourcesto the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.l8!’ * (People v. Hajjaj (2010) 50 Cal.4th 1184, 1196 [analyzing whena caseis broughtto trial for purposes of Penal Code section 1382, which requires dismissalif certain speedy trial deadlines are not met].) The 8 We notethe trial court and the parties, at the November 29, 2016 hearing at whichthetrial court granted real party in interest’s motion for a fitness hearing, discussed whether the attachment ofjeopardy is the last point at which a motionfortransfer to adult court can be made, even in a case that wasfiled before the passage of Proposition 57. We express no view on this question, as it is not presently before us. Ourreference to the rule for calculation of when a case has gonetotrial for speedytrial purposes is intended only to emphasize that a “trial” has not yet occurredin this case. 33 People have not shown,nor can they show,that real party in interest has participated in a proceeding in adult court that meets these criteria. They have therefore not shownthat the harm Proposition 57’s ballot pamphlet said the new law would prevent, namely, “trial” of a juvenile in adult court without the permission of a juvenile judge, has occurred. As weseeit, this means the People have not shownthatthe last act precedent to application of Proposition 57 has already happened, such that requiring a juvenile judge to assess whetherreal party in interest will be brought to trial in adult court would be applying Proposition 57 retroactively. Finally, the People argue some temporal qualifiers in the materials supporting Proposition 57, combined with theinitiative’s relative silence regarding retroactivity, evidence an intent on the part ofthe voters to only have the initiative’s newrules applied to cases filed after its passage. “Specifically, [they contend,] the legislative analysis provided to the voters in the ballot pamphlet includes the stated intent of ensuring that minors ‘accused of committing certain severe crimes would no /onger automatically be tried in adult court’ and that a judge would need to make a determination ‘before youths can be transferred to adult court.’ (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) analysis by the legislative analyst, p. 56, emphasis added.)” We are unconvincedthat theitalicized adverbs above imply anything about retroactivity. In fact, this phrasing seems morelike an indication that the voters intended Proposition 57’s provisions regarding juveniles to be applied immediately; otherwise, it would be untrue that minors are “no longer” automatically tried in adult court, and that a juvenile judge must grant a motion to transfer “before” a trial in adult court can occur. 34 Although portions of Proposition 57 that are not at issue here and someinitiatives that are similar to Proposition 57 mention retroactivity while the portion of Proposition 57 that affect juvenile offenders do not, this does not change our analysis. The Tapia court was quite clear that the initiative under consideration there was “entirely silent on the question of retrospectivity,” and yet it applied the new lawanyway. (Tapia, supra, 53 Cal.3d at p. 287.) In caseslike this, “ ‘the statutory changesare said to apply not because they constitute an exception to the general rule of statutory construction[i.e., the presumption of prospectivity], but because they are not in fact retroactive. Thereis then no problem as to whether the Legislature intended the changes to operate retroactively.’ ” (Tapia, at p. 290, quoting Aetna Casualty, supra, 30 Cal.2d at p. 394.) Moreover, “We must assumethat [the] voters knew about and followed Tapia.” (John L. v. Superior Court (2004) 33 Cal.4th 158, 171.) Because we do precisely this, and because we conclude that Proposition 57 is being applied prospectively in this case, it is of no moment that Proposition 57 does not explicitly address retroactivity. Wepublish today’s opinion because we recognizethattrial courts may need guidance deciding whether and howto apply Proposition 57 to cases that were directly filed in adult court before its passage. We caution that we need not and therefore do not opine about anything other than the retroactivity of the portion of Proposition 57 that requires the juvenile court to permit trial of a minorin an adult criminal court. Wedo not address the equal protection argumentreal party in interest advancedin his informal response. (People v. Pantoja (2004) 122 Cal.App.4th 1, 10 [court must avoid reaching constitutional issues if case can be resolved on statutory ground].) In addition, although 35 the People asked for advice about how courts should handle direct-filed cases that are transferred to juvenile court and then back to adult court after a successful motion under Welfare andInstitutions Code section 707, subdivision (a), we do not purport to guide trial courts regarding other procedural aspects of cases against juveniles now that Proposition 57 has passed. Any suchissuesare bestleft for cases that squarely present them. DISPOSITION Thepetition is denied. CERTIFIED FOR PUBLICATION RAMIREZ PJ. Weconcur: McKINSTER J. SLOUGH J. 36