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U.S. Supreme Court,
Constitutional Law,
California Supreme Court,
California Courts of Appeal

Feb. 15, 2018

A penny for your thoughts

“The only constant is change.” Heraclitus may have been talking about life. But he might as well have been talking about the criminal law.

"The only constant is change." The ancient Greek philosopher Heraclitus who said it may have been talking about life. But he might as well have been talking about the criminal law.

Sometimes legislatures or voters increase the penalties for criminal conduct. Other times, they decrease those penalties. And still other times, they change the procedures by which an accused is tried and convicted.

In the last few years, California has seen a vast array of new laws and voter initiatives that fall into the latter two categories. Propositions 36 and 47, respectively, decrease the penalties for certain defendants subject to California's Three Strike Law and reduce many lower-level felonies to misdemeanors. Pen. Code Sections 1170.126, 1170.18. Along the same lines, Senate Bills 180 and 620, respectively, reduce the penalties for repeat drug offenders and grant courts the power to strike otherwise mandatory firearm sentencing enhancements. Health & Safety Code Section 11370.2; Pen. Code Sections 12022.53(h), 12022.5(c). And Proposition 57 and Senate Bill 658, respectively, alter the procedures for charging juvenile offenders and for jury selection in criminal cases. Welf & Inst. Code Section 707; Code Civ. Proc. Section 223.

But which defendants get to take advantage of these new, more defendant-friendly laws?

At the one end of the spectrum are defendants who commit a crime after a new law is enacted; they are subject to the new law, whether it is defendant-friendly or defendant-unfriendly. Cf. Peugh v. United States, 569 U.S. 530, 532-33 (2013) (ex post facto protections only apply when penalty is increased after the crime is committed). At the other end are defendants whose convictions are "final" because they have been affirmed on direct appeal, People v. Smith, 234 Cal. App. 4th 1460, 1465 (2015); those defendants are generally not able to take advantage of the new law unless that law so specifies (as both Propositions 36 and 47 do) or unless the new law interprets the federal Constitution in such a way as to recognize a new "watershed right of criminal procedure" or to prohibit a state from prosecuting their underlying conduct, Teague v. Lane, 489 U.S. 289 (1989).

The defendants in between -- those who are still in the "pipeline" of prosecution and direct appeal -- are the ones whose right to benefit from the new law is the most up in the air.

As to these pipeline defendants, the question becomes: Is the new law retroactive?

And, as it turns out, that question unpacks into two questions.

The first is: Does the new law operate retrospectively? In other words, does the new law affect an event that has already happened or an event that has yet to happen? If it is the former, the law operates retrospectively; if it is the latter, it operates prospectively. Thus, a law that affects jury selection operates prospectively when applied to a defendant who has been charged but has not yet selected his jury (and thus requires no further analysis). Tapia v. Superior Court, 53 Cal. 3d 282, 288 (1991). But a law that affects discovery operates retrospectively when applied to a defendant who was, under the new law, already supposed to have made certain disclosures. Id. at 300; see also People v. Hayes, 49 Cal. 3d 1260, 1274-75 (1989) (admissibility of post-hypnotic statements).

If the new law operates retrospectively, then the second question becomes: Does that law apply retroactively? By and large, the answer is "a matter of legislative intent." People v. Brown, 54 Cal. 4th 314, 319 (2012).

The California Legislature has explicitly adopted a presumption that it intends new statutes to apply prospectively: "No part of [a new law] is retroactive" unless (1) "expressly so declared"; or (2) other "extrinsic sources" make it "very clear" "that the Legislature or the voters must have intended a retroactive application." Pen. Code Section 3; Evangelatos v. Superior Court, 44 Cal. 3d 1188, 1208-09 (1988).

Although express declarations of a contrary legislative intent are easy to spot, inferring such a contrary intent is a lot murkier. Like beauty, what is implied is often in the eye of the beholder.

The California Supreme Court has made this task a hair easier by erecting a counter-presumption of retroactive intent that applies whenever a new law "lessen[s] the punishment" for a crime. In re Estrada, 63 Cal. 2d 740, 745 (1965). This presumption rests on an anti-vengeance rationale: Once the Legislature (or voters) decides that the new, lesser punishment is proper, Estrada reasons, the only reason not to extend that benefit to people whose convictions are not yet final is to exact "vengeance or retribution." Id. at 744-45. Of course, Estrada itself recognizes that its counter-presumption may be rebutted either by (1) an express "savings clause" specifying that the new law's lesser penalty is only to be applied prospectively, People v. Floyd, 31 Cal. 4th 179, 185 (2003), or (2) an implied intent to apply the law prospectively, In re Pedro T., 8 Cal. 4th 1041, 1046-47 (1994).

Applying Estrada's counter-presumption and its counter-counter-presumptions has itself proven to be challenging. Estrada's counter-presumption applies when the new law (1) reduces or eliminates the penalty for a crime, People v. Nasalga, 12 Cal. 4th 784, 792-93 (1996); People v. Hajek & Vo, 58 Cal. 4th 1144, 1194-96 (2014); or (2) grants a trial court a newfound discretion to reduce or eliminate the penalty for a crime, People v. Francis, 71 Cal. 2d 66, 76 (1969). And courts have inferred a legislative intent to rebut Estrada's counter-presumption when the new law (1) reduces a sentence pursuant to the sunsetting of a "legislative experiment" that temporarily raised the sentence, Pedro T. at 1046-47; (2) has its own procedures for applying for relief under the new law, People v. Conley, 63 Cal. 4th 646, 656-58 (2016), or (3) has a delayed effective date, Floyd at 187.

In People v. Superior Court (Lara), 2018 DJDAR 1144 (Feb. 1, 2018), the California Supreme Court confronted whether and how the Proposition 57 applied to pipeline defendants.

As noted above, Proposition 57 transfers the power to decide whether a juvenile offender charged with certain aggravated felonies will be prosecuted and punished as an adult from prosecutors (who previously had the power or duty to file these charges directly in adult court) to the juvenile courts (who are instead to hold fitness hearings to decide whether to transfer the case to adult court). Welf. & Inst. Code Section 707. In addition to the procedural differences between juvenile and adult courts, the maximum sentences also differ: Juveniles tried in juvenile court must be released by age 23, id. Section 607(f), while sentences in adult court have no such cap.

The Courts of Appeal had split over whether this law applied to juveniles in the pipeline. Those courts disagreed over whether the law operated retrospectively, with some treating the key event as trial (such that Proposition 57 could validly be applied prospectively to juveniles not yet tried), see People v. Superior Court (Lara), 9 Cal. App. 5th 753, 774-77 (2017), and others treating the key event as charging (such that Proposition 57 operated retrospectively), People v. Superior Court (Walker), 12 Cal. App. 5th 687, 710-11 (2017). The courts also disagreed over whether Proposition 57, if it operates retrospectively, should be applied retroactively under Estrada.

Lara expressly resolved the second split. The court acknowledged that Estrada did not apply "directly" because Proposition 57 "did not ameliorate the punishment, or possible punishment, for a particular crime," but instead "ameliorated the possible punishment for a class of persons, namely juveniles." Id. at 11 (emphasis added). In the court's view, "Estrada's inference of retroactivity" extended to this slightly different context. Lara only implicitly addressed the first split (regarding whether Proposition 57 operates retrospectively) because its decision on the second split would have been unnecessary if the key event was trial rather than charging.

Lara helps clarify how to discern legislative or voter intent behind ameliorative statutes. We may get further guidance when the court decides several other pending cases regarding the retroactivity of ameliorative statutes, including People v. Cervantes, S241323 and People v. Mendoza, S241647 (both Proposition 57 cases) as well as People v. Valenzuela, S232900 and People v. DeHoyos, S228230 (both Proposition 47 cases).

Given what is at stake in all of these cases, a direct expression of the legislature's or voter's intent is worth far more than the proverbial penny. But in its absence, the courts do their best to put in their two cents.


Ben Armistead

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