[REVIEW GRANTED] Williams v. Superior Court (People) (2001)

CHARLES ANDREW WILLIAMS, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

(Superior Court of San Diego County, No. CE211823, Herbert J. Exarhos, Judge.)

(Opinion by Huffman, Acting P. J., with Nares, J. concurring. Dissenting opinion by McDonald, J. (see p. 1423).)

COUNSEL

Steven J. Carroll, Public Defender, Gary R. Nichols, Jo Pastore, Robert Rexrode, Deputy Public Defenders, for Petitioner.

John T. Philipsborn for California Attorneys for Criminal Justice, upon the request of the Court of Appeal, as Amicus Curiae on behalf of Petitioner.

No appearance by Respondent.

Paul J. Pfingst, District Attorney, Thomas F. McArdle and Anthony Lovett, Deputy District Attorneys, for Real Party in Interest.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Laura Whitcomb Halgren and Patti W. Ranger, Deputy Attorneys General, upon the request of the Court of Appeal, as Amicus Curiae.

Gary T. Yancey, District Attorney (Contra Costa) and L. Douglas Pipes, Deputy District Attorney for the California District Attorneys Association, upon the request of the Court of Appeal, as Amicus Curiae. [93 Cal. App. 4th 1410]

OPINION

HUFFMAN, ACTING P. J.

This petition challenges the constitutionality of Welfare and Institutions Code (W&I) section 602, subdivision (b)(1), enacted by section 18 of Proposition 21, the "Gang Violence and Juvenile Crime Prevention" initiative (hereafter Proposition 21). fn. 1 Under W&I section 602, subdivision (b)(1), a minor age 14 or older who is alleged to have committed enumerated offenses must be prosecuted in adult rather than juvenile court.

Petitioner Charles Andrew Williams (petitioner) was charged in adult court pursuant to W&I section 602, subdivision (b)(1). He argues that Proposition 21 is invalid because it violates the single-subject rule contained in the California Constitution, article II, section 8, subdivision (d), that W&I section 602, subdivision (b)(1) is therefore invalid, and that the adult court does not have jurisdiction over this proceeding.

We recognize the issue presented by this petition is currently pending before the California Supreme Court. We also recognize that Court will write the final decision on the validity of Proposition 21. Our duty in the interim is to resolve the issue in the case before us to the best of our ability based upon the available precedent. Based upon our analysis of existing law, we will reject the challenge based upon the single-subject rule finding that although Proposition 21 is a complex criminal justice reform measure with multiple subparts, each part is reasonably germane to the general purposes of the initiative. [93 Cal. App. 4th 1412]

I

FACTUAL AND PROCEDURAL BACKGROUND

The San Diego County District Attorney filed a complaint in respondent court charging petitioner with two counts of murder (Pen. Code, fn. 2 § 187, subd. (a)), and alleged as to each murder the special circumstances of multiple murders and lying in wait. fn. 3 (§ 190.2, subds. (a)(3), (15).) The complaint also alleged in connection with the murder counts that petitioner was a minor age 14 years or older at the time of the murders and had personally killed the victims, and the murders involved special circumstances within the meaning of W&I section 602, subdivision (b).

Petitioner demurred to the complaint, contending the court had jurisdiction over these proceedings solely by virtue of Proposition 21, and that Proposition 21 was invalid because it violated the single-subject rule. fn. 4 The court overruled the demurrer. Petitioner then filed the writ petition now before us. We ordered a stay of the proceedings below, and issued an order to show cause and heard oral argument. He reasserts in his writ petition that Proposition 21, including W&I section 602, subdivision (b), is invalid because it violates the single-subject rule.

II

ANALYSIS

[1] The initiative process is a power reserved to the people rather than one granted to them (National Paint & Coatings Assn. v. State of California (1997) 58 Cal. App. 4th 753, 760), and occupies a "cherished and favored role . . . in our constitutional scheme." (Senate of State of Cal. v. Jones (1999) 21 Cal. 4th 1142, 1158 (Jones).) However, the initiative power is subject to an important limitation under article II, section 8, subdivision (d) of the California Constitution, which provides that initiative measures may not "embrac[e] more than one subject."

Petitioner contends Proposition 21 violates the single-subject rule because it embraces numerous subjects that are not reasonably germane to each other [93 Cal. App. 4th 1413] or to the stated purpose of the initiative. The People counter that under case law an initiative may have a broad scope without violating article II, section 8, subdivision (d), and argue Proposition 21 does not offend the single-subject rule because its provisions are reasonably germane to each other and to its stated purpose.

A. The Standards for Evaluating a Single-Subject Challenge

[2] The courts have recognized the single-subject rule is consistent with the "cherished and favored role" occupied by the initiative process because the single-subject rule is an integral safeguard designed to maintain the integrity of the initiative process by preventing deceptive manipulation or abuse of that process. (Jones, supra, 21 Cal.4th at pp. 1157-1158.) The single-subject rule promotes related policies: to protect the electorate from confusing or misleading measures (ibid.), and to prevent proponents of initiatives from engaging in "logrolling." fn. 5 (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal. 3d 208, 231-232 (Amador Valley).)

[3] The oft stated test is that an initiative, even though containing numerous and complex provisions, comports with California's single-subject rule if "'despite its varied collateral effects, all of its parts are "reasonably germane" to each other,' and to the general purpose or object of the initiative." (Brosnahan v. Brown (1982) 32 Cal. 3d 236, 245 (Brosnahan), emphasis in original.) The single-subject rule "obviously forbids joining disparate provisions which appear germane only to topics of excessive generality such as 'government' or 'public welfare,'" but the courts have indulged in a "liberal interpretative tradition . . . of sustaining statutes and initiatives which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose." (Id. at p. 253.) The single-subject rule does not require that each of the provisions of an initiative measure effectively interlock in a functional relationship (id. at pp. 248-249); however, the various provisions must be reasonably related to a common theme or purpose. (Raven v. Deukmejian (1990) 52 Cal. 3d 336, 347-348.) If the provisions of an initiative possess a reasonable and common sense relationship among its various components to further the common underlying purpose, then "[w]hether or not these various provisions are wise or sensible, and will combine effectively to achieve their stated [93 Cal. App. 4th 1414] purpose, is not our concern in evaluating [a] single-subject challenge." (Legislature v. Eu (1991) 54 Cal. 3d 492, 514, emphasis in original.)

The diversity of an initiative's purposes and subjects, rather than the number of its provisions, invalidates an initiative under the single-subject rule. For example, in Brosnahan the California Supreme Court considered a challenge to Proposition 8, the "Victims' Bill of Rights," an initiative with wide ranging and numerous provisions including victim restitution, school safety, bail, sentence enhancements, the use of prior convictions to impeach, the defense of diminished capacity, and evidentiary rule changes. The Brosnahan court held it did not violate the single-subject rule because the parts, although numerous, were reasonably germane to a central defined purpose. fn. 6 (Brosnahan, supra, 32 Cal.3d at p. 246.)

In contrast, in Jones, supra, 21 Cal. 4th 1142, the California Supreme Court evaluated a proposed initiative that contained relatively few substantive provisions but held it invalid because its provisions addressed two distinct subjects. Several provisions were concerned with compensation of state officers, and a separate provision addressed the distinct subject of reapportionment of voting districts. (Id. at p. 1161.) The court concluded these provisions did not have a common subject beyond a commonality at a level of abstraction so general it would "'essentially obliterat[e] the constitutional requirement'" of a single subject. (Id. at p. 1162.) Additionally, the Jones court's analysis described how joinder of the disparate subjects within the proposed initiative threatened to undermine the policies promoted by the single-subject rule, thus confirming that one component of a single-subject analysis is whether the joined provisions might confuse or deceive voters or permit logrolling. (See Uelmen, Handling Hot Potatoes: Judicial Review of California Initiatives After Senate v. Jones (2001) 41 Santa Clara L.Rev. 999, 1024-1025.)

B. The Matters Encompassed Within Proposition 21

Proposition 21's title, as well as its findings and declarations, state that its purpose is to reduce juvenile and gang-related crime. (Prop. 21, §§ 1-2.) [93 Cal. App. 4th 1415] Because one indicia of compliance with the single-subject rule is the extent to which the substantive provisions of an initiative are consonant with the purposes expressed in the initiative's title and preamble (California Trial Lawyers Assn. v. Eu (1988) 200 Cal. App. 3d 351, 358; Brosnahan, supra, 32 Cal.3d at pp. 246-247), we detail the substantive provisions of Proposition 21 and examine those provisions for consonance with its stated purpose.

The 32 substantive sections of Proposition 21 can be subdivided into four subsets. The first subset, which we denominate the "gang provisions," are those sections that amend or enact statutes specifically targeted at the problems presented by street gangs. Sections 3 through 10 of Proposition 21 amend portions of the Street Terrorism Enforcement and Prevention Act (§ 186.21 et seq., the STEP Act), an act designed to combat violent street gangs. (§ 186.21.) Section 11 of Proposition 21 adds gang-related murder as a special circumstance. Portions of section 15 of Proposition 21 add two gang-related crimes to the provisions of section 667.5, and a portion of section 13 of Proposition 21 amends the wiretap statute (§ 629.52) to add violation of the STEP Act to the crimes for which wiretaps may be authorized.

The second subset, which we denominate the "juvenile provisions," is composed of sections that address juvenile crime and the juvenile justice system and apply to all juvenile offenders regardless of whether the offender is a participant in a street gang. fn. 7 Sections 18 through 34 of Proposition 21 amend various portions of the W&I to alter various aspects of the juvenile justice system, including: expanding the list of offenders who must (Prop. 21, § 18), or in the prosecutor's discretion may (Prop. 21, § 26), be prosecuted in adult court; changing the procedures and standards for revoking a juvenile's probation (Prop. 21, § 27); reducing in various ways the confidentiality previously afforded to juvenile offenders (Prop. 21, §§ 19, 25 & 30); and making other changes pertaining to juvenile offenders.

The third subset, which we denominate the "repeat offender provisions," is composed of four sections that apply to all offenders regardless of their age or gang affiliation. Sections 15 and 17 of Proposition 21 amend sections 667.5 and 1192.7, respectively, to expand the list of violent and serious felonies that qualify for treatment under those sections and under the "Three Strikes" law (§ 667, subds. (b)-(i)). Sections 14 and 16 of Proposition 21 change the reference dates for sections 667.5 and 1192.7, respectively, from June 30, 1993, to March 8, 2000, which [93 Cal. App. 4th 1416] has the effect of expanding the lists of violent and serious felonies that qualify all offenders for treatment under the Three Strikes law.

The fourth subset, which we denominate the "wiretap provisions" is composed of a portion of section 13 of Proposition 21 that amends the wiretap statute (§ 629.52) to add a violation of section 186.22 and a violation of Health and Safety Code section 11370.6 (possession of funds in excess of $100,000 related to illegal drugs) to the crimes for which a wiretap may be authorized.

C. Proposition 21 and the Single-Subject Rule

[4a] Our review of the substantive provisions of Proposition 21 convinces us that all of its components are reasonably germane to other of its components or to its stated purpose. Therefore, we conclude that Proposition 21 is not subject to challenge under article II, section 8, subdivision (d), of the California Constitution.

As a preliminary matter, we agree with the People that Proposition 21's amalgamation of juvenile provisions with gang provisions does not offend the single-subject rule. The declared purpose and goal of Proposition 21 was to address the broad problem of juvenile crime, and to target gang violence as a specific and more dangerous subset of the broader problem. (Prop. 21, § 2.) Although petitioner correctly asserts that not all juvenile offenders belong to gangs, and all gang members are not juveniles, there is an undeniable and significant overlap between these two groups. fn. 8 Accordingly, we are satisfied the portions of Proposition 21 enacting a comprehensive, two-pronged approach -- one seeking to reform a juvenile justice system that deals with nearly all juvenile offenders who are a significant percentage of the gang offenders, and a second prong targeting gang offenders -- encompass provisions reasonably germane to the single-subject of crimes by youths acting individually or in concert with their gangs. The commonality of juvenile crime and gangs is not at a level of abstraction so general it obliterates the constitutional requirement of a single subject. (Jones, supra, 21 Cal.4th at p. 1162.)

The principal challenge in the petition focuses on the recidivist provisions of sections 15 through 17 of the measure. We will discuss the several challenges to those provisions separately. [93 Cal. App. 4th 1417]

D. Recidivist Provisions

Section 15 of Proposition 21 is a repeat offender provision that expands the list of violent felonies that qualify for enhanced punishment of habitual criminals under section 667.5 (Prop. 21, § 15).

Sections 16 and 17 of Proposition 21 are also repeat offender provisions that expand the list of serious felonies that will qualify as strikes under the Three Strikes law. Proposition 21 accomplishes this by first explicitly adding offenses to the list of serious felonies contained in section 1192.7, subdivision (c) and then enacting section 1170.125. (Prop. 21, §§ 16, 17.) Proposition 21 then adds section 1170.125, which modifies the Three Strikes law to include as qualifying felonies all post-June 30, 1993, additions to the serious felonies list. fn. 9 The post-June 30, 1993, legislative additions to the serious felonies thus converted into qualifying serious felonies by sections 1170.125 and 667.1 encompass a number of offenses added by the Legislature in 1998, including: (1) throwing acid or flammable substances in violation of section 244; (2) continuous sexual abuse of a child in violation of section 288.5; (3) rape in concert in violation of section 264.1; and (4) any violation of section 12022.53. (See Stats. 1998, ch. 936, § 13.5.) It also converts carjacking (§ 215, subd. (a)), an offense added by the Legislature to section 1192.7, subdivision (c) in October 1993 (see People v. Nava (1996) 47 Cal. App. 4th 1732, 1736-1737), into a qualifying serious felony.

Petitioner contends these provisions violate the single-subject rule in that they principally revise the Three Strikes law (§§ 667, subds. (b)-(i)) and are not reasonably germane to the purposes of the initiative which deals with juvenile and gang-related crime. Petitioner argues the addition of such nonjuvenile related matters would mislead the voters and introduce unrelated changes to the recidivist statutes which are primarily directed to adult crimes.

We believe careful analysis of the recidivist provisions of Proposition 21 demonstrate the changes in those statutes are reasonably germane to addressing juvenile and street gang crime. The modification of the "freeze [93 Cal. App. 4th 1418] date" for the definition of serious/violent felonies under the Three Strikes law is a necessary step to accomplish the purposes of Proposition 21. The resulting inclusion of serious felonies defined by the Legislature since 1993 but before the enactment of Proposition 21 is a reasonable collateral consequence of the initiative as recognized as appropriate in Jones, supra, 21 Cal. 4th 1142.

Proposition 21 added nine new felonies to the serious felony list. These felonies are: (1) exploding a destructive device with bodily injury (§ 12309), (2) any felony which would also constitute a felony violation of section 186.22, (3) all violations of section 245, (4) all violations of sections 245.2, 245.3 and 245.5, (5) discharging a firearm at an inhabited dwelling, vehicle or aircraft (§ 246), (6) shooting a firearm from a vehicle (§ 12034, subds. (c) & (d)), (7) intimidating victims and witnesses (§ 136.1), (8) criminal threats (§ 422); and (9) conspiracy to commit any serious felony (§ 182, subd. (a)(1)).

In addition, Proposition 21 added nine new felonies to the violent felony list. These nine new violent felonies are (1) all robberies (§ 211), (2) arson of an inhabited structure or inhabited property (§ 451, subd. (b)), (3) exploding destructive device with bodily injury and great bodily injury (§§ 12309 & 12310), (4) all kidnappings, (5) all violations of section 220, (6) all carjackings, (7) extortion for gang purposes (§§ 518 & 186.22), (8) threatening witnesses and victims for gang purposes (§§ 136.1 & 186.22), and (9) any first degree burglary in which a nonaccomplice of the defendant was present in the residence at the time of the burglary.

Petitioner claims these felonies have nothing to do with gang or juvenile activities and argues they relate solely to adult offenders. We disagree. It is apparent that the nine new serious felonies will clearly impact juveniles. Five of the nine serious felonies, section 186.22, section 245, subdivision (a), (assault with force likely to produce great bodily injury), section 246, section 136.1 and section 12034, subdivision (c), were already listed in subdivision (b) of W&I section 707 prior to the enactment of Proposition 21. However, before this Proposition the five felonies listed above could not constitute serious or violent felonies within the meaning of section 667, subdivisions (b) through (i), based upon a juvenile adjudication because they were not serious felonies when committed by an adult. (People v. Leng (1999) 71 Cal. App. 4th 1, 10-11.) Including these five new felonies in both lists, that is, the W&I section 707, subdivision (b) list, and Penal Code section 1192.7, subdivision (c), makes juvenile adjudications of these five felonies strikes within the meaning of the Three Strikes law. [93 Cal. App. 4th 1419]

Any crime that is contained in the list of serious or violent felonies can constitute a strike when the crime is committed by a 16 or 17-year-old juvenile, and the crime results in an adjudication of wardship in the juvenile court for the offense listed in W&I section 707, subdivision (b). The addition of the five new felonies to the list of serious felonies which were not previously contained in section 1192.7, subdivision (c), makes it possible for a juvenile to accumulate a strike as a result of a juvenile adjudication of the newly added serious felonies.

The remaining new serious felonies, sections 182, 245.2, 245.3 and 245.4, as well as sections 422 and 12309, were not listed in W&I section 707, subdivision (b) prior to the enactment of Proposition 21 nor were they added by that initiative. Under previous law juvenile adjudications for those four felonies could never be strikes because they were not serious felonies when committed by an adult. (People v. Leng, supra, 71 Cal.App.4th at pp. 10-11.) Since these four felonies have been included in the serious felony list and because the freeze date for strikes has been changed, a juvenile adjudication for these four felonies could constitute a strike if the qualifying juvenile is adjudged a ward of the juvenile court in the same proceeding for at least one offense listed in W&I section 707, subdivision (b). (People v. Garcia (1999) 21 Cal. 4th 1, 6.)

Thus it seems clear that the addition of the nine new felonies listed above to the list of serious felonies under section 1192.7, subdivision (c), does not relate solely to adult nongang offenders as petitioner contends. Nor does it "relate[] only to sentencing enhancements for adult criminal offenders."

Similarly the addition of nine felonies to the violent felony list of section 667.5, subdivision (c) does not relate simply to the prosecution of adults. When a crime is added to the list of violent felonies if that crime is not also a serious felony its addition to section 667.5, subdivision (c) makes it a strike. Further, denominating a crime a violent felony limits conduct credits, including work time and good time credits which a prisoner can earn to only 15 percent of the sentence. (People v. Palacio (1997) 56 Cal. App. 4th 252; § 2933.1.) Finally, an enhancement may be added to the subordinate term for a violent felony. (People v. Ramos) (1996) 50 Cal. App. 4th 810; People v. Palacio, supra, 56 Cal. App. 4th 252.)

While limitation upon conduct credits and the enhancement for violent subordinate terms do not apply to juvenile court proceedings, they would apply to juveniles who are prosecuted as adults in the criminal courts. Both [93 Cal. App. 4th 1420] Proposition 21 and the law in existence at the time of its passage recognize some juveniles can lawfully be prosecuted in the criminal courts.

One of the principal defects in petitioner's challenge to the recidivist provisions of Proposition 21 is the assumption its purpose is to address offenses under the jurisdiction of the juvenile court. The initiative is not so limited. The measure certainly deals with such prosecutions, however, it also purports to significantly expand the circumstances under which juveniles can be prosecuted in adult court. Thus increasing the availability of recidivist treatment for certain types of criminal conduct potentially effects juveniles who are prosecuted in adult court or those who have suffered prior juvenile adjudications which can be alleged as strikes when such juveniles reoffend and are sent to the criminal courts.

Petitioner also makes the erroneous assumption that Proposition 21 effects only juveniles. It does not. The reach of initiative's stated purposes is to address crime by street gangs as well as juveniles. While it is true street gangs include juveniles such persons are not the exclusive membership of those gangs. As we have previously noted a 1998 National Youth Gang Survey conducted by the Office of Juvenile Justice and Delinquency Prevention indicated only 40 percent of gang members were 17 years of age or under. Thus, the statutory amendments to add recidivist provisions relevant to such gang activity will, of necessity, include adult offenders within its scope.

E. Changing the "Freeze Date"

Sections 14 and 16 of Proposition 21 update the freeze date of the Three Strikes law. The proposition enacted sections 667.1 and 1170.125 which provide that all references to existing statutes in "three strikes" "are to those statutes as they existed on the effective date of this act including amendments made to those statutes by this act." Since a felony strike is any conviction or juvenile adjudication of violent or serious felonies listed or defined in sections 667.5, subdivision (c) and 1192.7, subdivision (c), the effect of these newly enacted sections is to update the strike list to mirror the serious and violent felony lists as those lists read on March 8, 2000 as amended by Proposition 21.

The enactment of sections 667.1 and 1170.125 was appropriate in order to qualify as strikes the nine new felonies that the proposition added to the list of serious felonies under section 1192.7, subdivision (c). Without the enactment of these sections the nine new serious felonies would not qualify as strikes. We are persuaded that sections 667.1 and 1170.125 are reasonably [93 Cal. App. 4th 1421] related to the basic purpose of Proposition 21 which is to increase the protection of California's citizens against violent crime committed by juveniles and street gangs. Expansion of the crimes which can serve as strikes will increase the likelihood of greater sentences for juveniles and gang members who commit or have committed in the past violent crimes.

Petitioner argues the section modifying the "freeze date" is misleading to the voter because it relates solely to adult nongang offenders. Petitioner contends the crimes added to the strike list which include assault with intent to commit rape, throwing acid, and continuous sexual abuse of a child are not gang related. The principal weakness of this argument however is that those crimes were declared serious felonies by the Legislature (as well as the crimes of carjacking, assault with a deadly weapon on a firefighter, and violation of section 12022.53) prior to the enactment of this initiative. The fact these legislatively declared serious felonies were swept into the Three Strikes law by the enactment of Proposition 21 is a collateral consequence of the measure. Alteration of the freeze date was essential to accomplish the purpose of the initiative. That it had a collateral effect outside the purpose of the initiative is not fatal to its validity. (Jones, supra, 21 Cal. 4th at p. 1157; Legislature v. Eu, supra, 54 Cal.3d at p. 512; Brosnahan, supra, 32 Cal.3d at p. 245.)

In sum, we are satisfied that the recidivist provisions of Proposition 21 are reasonably germane to its purposes and that such relationship is not destroyed by the collateral effects of the amendment to the freeze date of the Three Strikes law. We reject the challenge on those grounds.

F. Wiretap Provisions

Section 13 of Proposition 21 amended section 629.52 to add section 186.22 to the list of felony offenses for which wiretapping may be authorized. Petitioner does not contend that section 186.22 is unrelated to juvenile and street gang activity. There is no serious challenge in this petition to this particular amendment to section 629.52.

During our review of section 13 of the initiative we noted it also added Health and Safety Code section 11370.6 fn. 10 to the list of offenses for which wiretapping can be authorized. The parties had not addressed that [93 Cal. App. 4th 1422] particular portion of section 13 of the initiative. [5] We requested supplemental briefing from the parties in order to address the question of whether the addition of a drug money laundering offense to the wiretap statute was reasonably germane to the purposes of Proposition 21.

Petitioner filed a terse response simply asserting that the addition of Health and Safety Code section 11370.6 to the wiretap statute was not reasonably germane to the purposes of Proposition 21. Petitioner offered no analysis to support such assertion.

The real party in interest (People) and their amicus California District Attorneys Association (CDAA) filed substantial supplemental briefs persuasively arguing that drug money laundering is an activity relevant to street gangs. Thus they contend the addition of Health and Safety Code section 11370.6 to the wiretap statute is reasonably germane to the purpose of addressing juvenile violence and street gang activity. We agree with real party in interest and amicus CDAA.

First, it is virtually without dispute in this record that juveniles are significantly involved in street gang activity (see 1998 National Youth Gang Survey published by the Office of Juvenile Justice and [93 Cal. App. 4th 1423] Delinquency Prevention of the U.S. Dept. of Justice, supra; see also § 13826, subds. (a) & (b)). fn. 11 Street gangs in turn are clearly involved in drug dealing in order to provide income. (1997 National Youth Gang Survey, Office of Juvenile Justice and Delinquency Prevention, U.S. Dept. of Justice, Summary and Conclusions (