PEOPLE v. S.C. (LARA)Petitioner’s Response to Amicus Curiae BriefCal.October 18, 2017 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, v. S241231 SUPERIOR COURT OF RIVERSIDE COUNTY, SUPREME COURT Respondent, FILED PABLO ULLISSES LARA,JR., OCT 1 8 2017 Real Party in Interest. Jorge Navarrete Clerk Deputy Court of Appeal Case No. E067296 Riverside County Superior Court Case Nos. RIF1601012 and RIJ1400019 The Honorable Richard T. Fields, Judge (case no. RIF1601012) The Honorable Mark E. Peterson, Judge (case no. RIJ1400019) ANSWER TO AMICUS CURIAE BRIEF FILED BY THE OFFICE OF THE LOS ANGELES COUNTY PUBLIC DEFENDER AND PACIFIC JUVENILE DEFENDER CENTER 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 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, Vv. §241231 SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, PABLO ULLISSES LARA,JR., Real Party in Interest. Court of Appeal Case No. E067296 Riverside County Superior Court Case Nos. RIF1601012 and RIJ1400019 The Honorable Richard T. Fields, Judge (case no. RIF1601012) The Honorable Mark E. Peterson, Judge (case no. RIJ1400019) ANSWERTO AMICUS CURIAEBRIEF FILED BY THE OFFICE OF THE LOS ANGELES COUNTY PUBLIC DEFENDER AND PACIFIC JUVENILE DEFENDER CENTER 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 Orange Street 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 CONTENTSuo. ceccessesesesesssssscssscscsrsustsevsnavssasessasesscsesssvaveesecs 2 TABLE OF AUTHORITIESoo... ccccccsccccsscsssscscsrsesecstscstscessesevsesestavevsvevees 3 ANSWER TO AMICUS CURIAEBRIEF ..u.cccccccccsesscesescscsesssssssesescscececes 4 INTRODUCTION... cescscstesescsescscscssscsessusesscusetstasatsssacavavacevessvevevenes 4 ARGUMENT oo. cccccscsssssssscsesesssesssseesssssesassssscssssusssecatssseraavavasavavavevavarsesevevaes 5 I. LACPD’S ARGUMENTTHAT PROPOSITION 57 IS ENTITLED TO RETROACTIVE APPLICATION IS WITHOUT MERIT........00000.0.. 5 A. LACPD’s Argument For The Retroactive Application Of Welfare AndInstitutions Code Sections 602 And 707, Based On The Language OfProposition 57, Is Unpersuasive....c.cccccsccccsesse. 6 B. LACPD’s Argument For The Application OfEstrada Is Misplaced......ccccccccscsssscsssessescseecsesescecsescssscsesassessseetstsessasstssseavensees 8 CONCLUSIONocccccccecessstssessesesesscsesesssscsssusessesesatarsnstasatacssassveacenes 13 TABLE OF AUTHORITIES CASES Aetna Casualty and Surety Co. v. Industrial Accident Commission............. 7 DiGenova v. State Bd. ofEd. (1962) 57 Cal.2d 167 v.ecccccccccscsssscssececessoceseeee. 7 In re Estrada (1965) 63 Cal.2d 740 woe ccccccsssecssesesssssscsecsecsssssecsceseeces 5,8 In re Griffin (1965) 63 Cal.2d 757 .occccccccccscccscsssessssssescsesscsscssessssesessesesseses 10 Evangelatos v. Superior Court (1988) 44 Cal.3d 1188....cccccccccccsccccesesececceee. 7 In re Kirk (1965) 63 Cal.2d 761 w..cccccecccscscesssssesesssssecssssescsacsscsvscsctevecteseces 9 Myers v. Phillip Morris Companies (2002) 28 Cal.4th 828 -..ccccccccccsoseceeceee. 8 People v. Babylon (1985) 39 Cal.3d 719 v.o.cccccccsesssscsssssscsscessstscectevecteseees 9 People v. Brown (2012) 54 Cal.4th 314vic ccccccssesescsscssessssssesseseeeesee. 8,11 People v. Chapman (1978) 21 Cal.3d 124 v.ccccccccsccssscsssscscessessacesestevecteceees 9 People v. Collins (1978) 21 Cal.3d 208 v..ccecccscseccsescsessssescsssecssessescesteceecees. 9 People v. Durbin (1966) 64 Cal.2d 474 vooccccccccccssecsssssscsseecescscsvssecsseetevecees 9 People v. Enriquez (1967) 65 Cal.2d 746 woeccccccccsccsssssessessesssecsecsseeceececceceee, 9 People v. Francis (1969) 71 Cal.2d 66 ....cccccccccssssssesssessestsestssessseseees 9,10 People v. Hajek (2014) 58 Cal.4th 1196 wove cccssesssssscsessscsssesevesees 10, 11 People v. Nasalga (1996) 12 Cal.4th 784 w.c.ccccscscsssssssssesssscsessesessscesesseee, 9 People v. Navarra (Oct. 16, 2017, F071142)__—_—s Cail.App.5th eeaeee 10 People v. Rangel (2016) 62 Cal.4th 1192 w..ccccccsccssssscssssescsescecssseecscsees 10 People v. Rossi (1976) 18 Cal.3d 295 w.o.cccccccscssccssscsssesscseseesscseseesvacscesesesees 9 People v. Vierra (2005) 35 Cal.4th 264 woccccccssssssssesssseseessssssssesesesseseceees 9 People v. Wright (2006) 40 Cal.4th 81 voc cccccscssssssesescsecsccssessesetesessecsees 9 STATUTES Penal Code § 12022.6ec cccceseceeseesesessssesesecacscsesscoscsussvevsvsvessessssavstsavassassssssseseeteverscee, 9 Welfare and Institutions Code § O02 eee ceeceeesecsesetsecsessessesesssserscsscsesauesecesasauecavasuesatasensness 6, 8, 10, 11, 12 § TOT veeceecccessseeseseeecsecsecsessessesecseseescssesecasssassasasavasasausausacerenses 6, 8, 10, 11, 12 2 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 3960 Orange Street Riverside, California 92501 Telephone: (951) 955-0870 State Bar No. 254151 IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, v. §241231 SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent, ANSWER TO AMICUS CURIAE BRIEF FILED BY PABLO ULLISSES LARA,JR., THE OFFICE OF THE LOS ANGELES COUNTYPUBLIC Real Partyin Interest) DEFENDER AND PACIFIC JUVENILE DEFENDER CENTER INTRODUCTION On September 18, 2017, the Los Angeles County Public Defender and the Pacific Juvenile Defender Center (hereafter LACPD)filed an amicuscuriae brief in this case. On September 20, 2017, this Court acceptedandfiled the brief. While the People have already addressed most of the issues raised therein, we haveelected to file this limited response to assist this Court by briefly addressing the errors in LACPD’sposition. ARGUMENT LACPD’S ARGUMENT THAT PROPOSITION 57 IS ENTITLED TO RETROACTIVE APPLICATION IS WITHOUT MERIT While LACPD’samicusbrief spends muchofits initial energy referencing numerouspenological and sociological factors that it contends are somehowrelevantto the issue before this Court, that approachis simply unavailing andoffthe point. While such factors would certainly have merit if the author’s purpose wasto help convince the Legislature or the electorate of the needto establish a particular piece of legislation, that is simply not the issue at hand. Indeed, this approach appears designedto evoke an emotional responserather than a legal resolution ofthe issues. The question before this Court is not whether society wouldbe best served by applying a particular legislative enactmentto all cases not yetfinal on appeal. Rather, the question here is whetherretroactivity was made clear to, and wasthe choiceof, the voters, or alternatively, whether the rule from In re Estrada (1965) 63 Cal.2d 740 (Estrada) shouldapplytothis particular initiative such that retroactive application will be presumed. And because LACPDdoes ultimately address both ofthelatter issues,it is this aspect of their brief that we will primarily addresshere. A. LACPD’s Argument For The Retroactive Application Of Welfare AndInstitutions Code Sections 602 And 707, Based On The Language Of Proposition 57, Is Unpersuasive LACPDfirst points out that certain crimes charged against juveniles were previously required to be filed directly in a court of criminal jurisdiction. (LACPDbrief, at pp. 37-38.) While this is certainly true, that fact simply gives no indication whatsoeveras to whether the change enacted by Proposition 57 was intended to be retroactive. Such a change can just as easily be argued as a valid prospective approach. LACPDthenreferences the fact that Proposition 57,in section 2, gave the legislative purposeofthe initiative as follows: “‘[4] 4. Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles. [{] 5. Require a judge, not a prosecutor, to decide whether Juveniles should be tried in adult court.’ (Ballot Pamp., Gen. Elec. (Nov.8, 2016) text of Prop. 57, p. 141.)” (LACPDbrief, at p. 38.) But again, there is nothing in such statements that gives any indication, let alone any clear indication, of an intent to apply these provisions in a retroactive manner. A prospective argument remains equally as valid. Lastly, LACPDreferences section 9 in Proposition 57, which stated: “*This act shall be liberally construed to effect its purposes.”” (LACPD brief, p. 38, referencing Ballot Pamp., Gen. Elec. (Nov.8, 2016) text of Prop. 57, p. 141.) The apparent argumenthereis that this language should be construed to justify retroactive application of new Welfare and Institutions Codesections 602'and 707.' (See LACPDbrief, pp. 38-41.) This argumentis defeated by well-established precedent. Indeed, as this _ | All further unspecified statutory references are to the Welfare and Institutions Code. Court hasplainly stated in this very context, “legislative intent in favor of the retrospective operation of a statute cannot be implied from the mere fact that the statute is remedial and subject to the rule of liberal construction.” (DiGenova v. State Bd. ofEd. (1962) 57 Cal.2d 167, 174.) ‘The rule of liberal construction and the rule that statutes should ordinarily be construed to operate prospectively are neither inconsistent nor mutually exclusive. Theyrelate to different aspects ofthe interpretation ofstatutes. It would be a most peculiar judicial reasoning which would allow one such doctrine to be invoked for the purposes of destroying the other.’ (Id. at pp. 173-174, quoting Aetna Casualty and Surety Co. v. Industrial Accident Commission (1947) 30 Cal.2d 388, 395.) Further, since most voterinitiatives are remedial in nature and intended to “‘improvea pre-existing situation,” giving retroactive effect to statutes on that basis would be contrary to California law, which unambiguously requires the prospective application of new lawsin the absence of a clear showing to the contrary. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1213 [“‘a remedial purpose does not necessarily indicate an intent to apply the statute retroactively. Moststatutory changes are, of course, intendedto improve a preexisting situation and to bring about a fairer state of affairs, and if such an objective wereitself sufficient to demonstrate a clear legislative intent to apply a statute retroactively, almostall statutory provisions and initiative measures would apply retroactively rather than prospectively.”].) In short, there is nothing in the ballot initiative or the statutes themselves indicating voters were given any understanding,let alone any clear understanding, that new sections 602 and 707 were intended to apply in anything other than a prospective manner. But even if one were to generously concludethe language was ambiguousin that regard, this Court has made the following very clear: Legislation “‘that is ambiguous with respect to retroactive application is construed. . . to be unambiguously prospective.’” (People v. Brown (2012) 54 Cal.4th 314, 320; Myers v. Phillip Morris Companies (2002) 28 Cal.4th 828, 841 (Myers).) LACPD’s claimsofretroactivity based on the languageoftheinitiative are simply without merit. B. LACPD’s Argument For The Application OfEstrada Is Misplaced LACPD’s position would require an expansion of the Estrada rule well beyond that which this Court has previously allowed. Forthe following reasons, in addition to the reasonsstated in previousbriefing, LACPD’s argumentin this context is not viable. In Estrada, this Court concluded,“i]t is an inevitable inference that the Legislature must have intendedthat the new statute imposing the new lighter penalty now deemedto be sufficient should apply to every case to whichit constitutionally could apply.” (Estrada, supra, 63 Cal.2d at p. 745 [amendatory statute reducing the penalty for the crime of escape without force or violence].) As this Court noted, “[o]rdinarily, when an amendment lessens the punishment for a crime one may reasonably inferthe Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest.” (/d. at pp. 790-791.) Butit is the specific reduction in penalty related to a particular offense,as set forth in the statuteat issue, that is the essence of the Estrada rule. As this Court has noted, “[t]he rule in Estrada has been appliedto statutes governing penalty enhancements,as wellas to statutes governing substantive offenses.” (People v. Nasalga (1996) 12 Cal.4th 784, 792.) This includes amendatory statutes that reduce the penalty for a specific offense from a straight felony to a wobbler. (People v. Francis (1969) 71 Cal.2d 66.) For example, this Court has found the Estradarule applicable in the following cases: In re Kirk (1965) 63 Cal.2d 761, 763 [applicable to an amendatory statute that raised the monetary threshold necessary to obtain a felony conviction for a particular theft offense]; People v. Enriquez (1967) 65 Cal.2d 746, 749 [same]; People v. Durbin (1966) 64 Cal.2d 474, 479 [applicable to an amendatory statute that reduces or eliminatescivil penalties or forfeitures previously applicable to a defendant]; People v. Rossi (1976) 18 Cal.3d 295, 299-304 [applicable to an amendatory statute that removesall penalties by decriminalizing the act for which defendant waspreviously convicted]; People v. Collins (1978) 21 Cal.3d 208, 212- 213 [same]; People v. Chapman (1978) 21 Cal.3d 124, 126 [applicable to an amendatory statute that reclassified certain marijuana possession as a misdemeanorand thereby removedthe penalty requiring drug offense registration]; People v. Babylon (1985) 39 Cal.3d 719, 727-728 [applicable to an amendatory statute that removedall penalties by redefining piracy of over-the-air subscription television transmissions to exclude defendant’s acts]; People v. Nasalga, supra, 12 Cal.4th at p. 792 [amendatorystatute increasing the amountof monetaryloss required to support the two-year enhancement under Penal Code section 12022.6]; People v. Vierra (2005) 35 Cal.4th 264, 305-306 [applicable to an amendatory statute limiting the amount of the penalty that may be assessed asa restitution fine to that whichthe defendanthastheability to pay]; People v. Wright (2006) 40 Cal.4th 81 [applicable to an amendatory statute removing criminal 9 sanctions for the transportation of marijuana whenthelatter is for personal use by individuals otherwise authorized to possess marijuana]; and People v. Hajek (2014) 58 Cal.4th 1196, overruled on other groundsin People y. Rangel (2016) 62 Cal.4th 1192 [applicable to an amendatory statute that removeda pellet gun from the definition of a firearm for purposesofa firearm enhancementpenalty]. In other words, this Court haslimited Estrada to an amendatory statute that does one of twothings: It either creates a change in the elements ofthe offense such that the statute’s specific penalty provisions no longer apply to the defendant’s prioracts, or it directly reduces a specific penalty provision set forth in a particular statute such that a non-final defendant can claim the benefit of the reduced penalty specified therein. But only then, when an express changecreates a situation where the defendant’s prioracts are no longer subject to the statute’s penalty provisions,or the amendatory statute has reduced its own penalty provisions, does the rule in Estrada apply. The Estrada rule has no application to the circumstancesat bar. Sections 602 and 707 contain nopenalty provisionsatall, let alone penalty ? The samecan besaid for In re Griffin (1965) 63 Cal.2d 757, 759-760 [new statute directly altered the applicable sentencing schemefor a specific offense], and People v. Francis, supra, 71 Cal.2d at pp. 75-77 [same], two cases upon which LACPDheavilyrelies. (See LACPDbrief, pp. 48-52.) But in both cases, unlike in the present case, Estrada was applicable because the new lawsat issue there directly reduced the available punishmentfor a specific criminal offense. Again, Proposition 57 neither directly reduced punishment, nordid it changethe law inrelation to a specific criminal offense. (E.g., People v. Navarra (Oct. 16, 2017, FO71142) —s Cal.App.5th [“[NJo provision of Proposition 57 mitigates the penalty for a particular criminal offense. Accordingly, Estrada does not overcomethestrong presumption of prospective-only application.”].) 10 provisions as discussed by this Court under the Estrada rule. In addition, the recent decision in People v. Brown, supra, 54 Cal.4th 314, again demonstrated this Court’s intent to re-emphasize the correct and limited nature of the Estrada rule, and underlined its original position so that the rule itself might maintain someviability and properly allow the long- standing tenets that are otherwise applicable to retroactive determinations to resolve all remaining cases. As this Court most recently noted in People v. Hajek, supra, 58 Cal.4th at page 1196: Importantly, however, while acknowledging the continuing viability of the Estrada rule, we have emphasizedits narrowness: ‘Applied broadly andliterally, Estrada’s remarks. . . would . .. endanger the default rule of prospective operation. Recognizingthis in Evangelatos, we declined to follow Estrada’ s remarks about [Penal Code] section 3 and held that ‘language in Estrada... should not be interpreted as modifying this well-established. . . principle[.]’ [Citation.] Accordingly, Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation .. . but rather as informingthe rule’s application in a specific contextby articulating the reasonable presumption thata legislative act mitigating the punishmentfor a particular criminaloffense is intended to applytoall nonfinal judgments.[Citation.]’ (Brown, supra, 54 Cal.4th at p. 324.) (People v. Hajek, supra, 58 Cal.4th at p. 1196,italics added.) This Court’s statements in this regard are important because nothing in sections 602 and 707 addressthe issue of penalty or punishment within 11 the meaning ofEstrada. There are simply no penalty provisionsatall in sections 602 and 707. While new section 602 currently makesall juveniles charged with offenses after November 8, 2016, presumptively eligible for juvenile handling, this does notidentify a specific statutory reduction in punishmentfor a particular offense or for a specific enhancement, nor does it identify any other specific penalty that is being reduced, as required for the Estrada rule to apply. In short, retroactivity for newsections 602 and 707 must be resolved under the standardrules applicable to retroactivity claims, not underthe rule in Estrada. And as discussedin previous briefing, no retroactive application is warranted under Proposition 57. 12 CONCLUSION For the reasons stated above, in addition to the reasonsset forth in previousbriefing, the juvenile-law amendments enacted by Proposition 57 are not retroactively applicable. Dated: October 17, 2017 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 ESt DONALD W. OSTERTAG Deputy District Attorney County of Riverside 13 CERTIFICATE OF WORD COUNT Case No. $241231 The text of the ANSWER TO AMICUS CURIAEBRIEF FILED BY THE OFFICE OF THE LOS ANGELES COUNTY PUBLIC DEFENDER AND PACIFIC JUVENILE DEFENDER CENTERintheinstant case consists of 2,156 words as counted by the Microsoft Word program usedto generate the said brief. Executed on October 17, 2017. 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 ZD.COdL DONALD W. OSTERTAG Deputy District Attorney County of Riverside 14 DECLARATION OF SERVICE Case No.: §241231 (E067296) I declare that I am overthe ageof 18, not a party to this action and my business addressis 3960 Orange Street, Riverside, California. On October 17, 2017, I served the within ANSWER TO AMICUS CURIAE BRIEF FILED BY THE OFFICE OF THE LOS ANGELES COUNTY PUBLIC DEFENDER AND PACIFIC JUVENILE DEFENDER CENTER,onthe following parties: I transmitted a PDF copy of this document through (www.truefiling.com) to the following recipients and email notification addresses: 1. 2. O I D M 10. 11. Rourke Frances Stacy, Los Angeles Public Defender: rstacy@pubdef.lacounty.gov Susan Lynn Burrell, Pacific Juvenile Defender Center: lsueburrell@gmail.com Richard L. Braucher, Pacific Juvenile Defender Center: rbraucher@fdap.org David John Briggs, Pacific Juvenile Defender Center: david@attorneybriggs.com Appellate Defender’s Inc.: eservice-court@adi-sandiego.com Attorney General: sdag.docketing@doj.ca.gov Riverside County Superior Court: appealsteam@riverside.courts.ca.gov Laura Arnold, Riverside County Public Defender: LOPDAppellateUnit@rivco.org Susan Kay Horst, California Appellate Law Group, LLP: law.susanhorst@gmail.com Peter John Cross, San Diego District Attorney: Peter.Cross@sdcda.org Court of Appeal, Fourth District, Division Two: viatruefiling I declare under penalty of perjury pursuant to the lawsofthe State of California that the foregoingis true and correct. ‘ | Dated: October 17, 2017 holee DECLARANT! 1)
