Law on juvenile criminals splits attorney general and county prosecutors

A rift between Attorney General Xavier Becerra and the state's district attorneys, five cases before the California Supreme Court, and split opinions among appellate justices: This was the yearlong fallout of SB 1391, the bill on juvenile criminals that has provoked ire among California prosecutors since it went into effect last Jan. 1.

County prosecutors spent much of the year watching -- and protesting -- as trial judges and appellate justices repeatedly sent cases back to juvenile courts if they involved defendants who committed crimes when they were 14 or 15.

With the exception of one in Ventura County, however, these protests were mostly met with indifference by the courts. Appellate justices affirmed again and again that SB 1391, which bars 14- and 15-year-olds from being prosecuted in adult criminal courts, is constitutional and did not interfere with Proposition 57. The proposition, enacted in 2016, required all cases involving these young teen defendants to start in juvenile court, but also gave judges the discretion to try some of them as adults.

Even prosecutors are split on whether SB 1391 is valid. In May, the attorney general filed an amicus curiae brief in the 6th District Court of Appeal in support of a minor defendant charged with one count of murder and three counts of attempted murder. People v. Superior Court (S.L.), H046598 (Cal. App. 6th Dist. Sept 20, 2019). The attorney general also filed amicus curiae briefs in O.G. v. Superior Court, B295555 (Cal. App. 2nd Dist. Sept 30, 2019) and People v. Superior Court (T.D.), 38 Cal. App. 5th 360 (Ca. App. 5th Dist. 2019). Because the cases involve juvenile defendants, the briefs are confidential, but a spokesperson for the attorney general said by email, "The California Department of Justice maintains that SB 1391 is a constitutional exercise of the Legislature's authority that furthers the stated purposes of Proposition 57 (2016)."

In addition to filing the briefs, the attorney general appeared as an "interested party" in People v. Superior Court (K.L.), 36 Cal. App. 5th 529 (Ca. App. 3rd Dist. 2019), in which the 15-year-old defendant was charged with murder, attempted murder, and shooting into an occupied vehicle. Becerra's lawyers also appeared as counsel in People v. Superior Court (Alexander C.), 34 Cal. App. 5th 994 (Ca. App. 1st Dist. 2019), arguing juvenile court correctly terminated the 14-year-old defendant's transfer to criminal court. "I don't know the history of attorney general-district attorney relations going back over the years, but they're both on the prosecution side," said David S. Ettinger, of counsel at Horvitz & Levy LLP. "To have disagreement on this significant an issue seems to be important."

Conflict over the bill looks to ramp up even more in 2020. In the new year, the Supreme Court will review five cases from Ventura, Stanislaus, Santa Clara, and Kings counties that consider the bill's validity, including O.G. v. Superior Court, People v. Superior Court (T.D.), and People v. Superior Court (S.L.). The other two cases are People v. Superior Court (G.G), F079007 (Cal. App. 5th Dist. Oct. 1, 2019) and People v. Superior Court (I.R.), F078893 (Cal. App. 5th Dist. Aug. 5, 2019). Appellate panel opinions for four of these cases had been split, with the majority deciding SB 1391 was valid. But in O.G. v. Superior Court, all three justices agreed the bill unlawfully amended Proposition 57 and therefore could not be applied. "It does not matter whether treating a 15-year-old alleged murderer as a juvenile is wise or unwise. That is not a judicial call," the published opinion read. "What is a judicial call is whether the Legislature may prohibit by statute what the electorate has previously authorized by initiative." The defendant allegedly shot one person and stabbed another when he was 15, killing both.

Asked if she has any theories as to why justices have been overwhelmingly ruling in favor of the bill, Michelle Contois, a Ventura County deputy DA, responded simply, "I don't. I think the opinions have to stand for themselves." "We want to convince the Supreme Court that those four opinions were wrongly decided," Contois continued. "There are victims of very serious crimes who I don't think will see real justice. ... You have some 15-year-olds that historically the voters have determined should be eligible for treatment in adult court, and judges have had some discretion. The voters gave the judges a lot of discretion in Prop 57, and obviously SB 1391 takes that away." The Supreme Court gave straight grants to all five cases on Nov. 26, but in December, the high court made O.G. v. Superior Court the lead case and converted the remaining four cases into grant-and-holds. In a Dec. 15 post on his blog, At the Lectern, Ettinger wrote, "Because O.G. stands alone in invalidating SB 1391, fundamental principles of stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and the 2016 rules change about the precedential effect of review-granted opinions appear to require all superior courts in California at this time to ... enforce SB 1391." Ettinger added, "A superior court could ignore those principles and rules, however, like the O.G. superior court did when it disregarded binding precedent and ruled that SB 1391 is invalid." In addition to the cases the high court has agreed to review, there are those still vying for further appeal. In Riverside County, prosecutors have asked the Supreme Court to review B.M. v. Superior Court, E072265 (Cal. App. 4th Dist. Oct 1, 2019), which concerns a defendant who allegedly murdered her mother by arson when she was 15. As with four of the cases before the Supreme Court, the appellate opinion was split 2-1, with two judges deciding that SB 1391 is valid. "What is at stake here is whether we are a society which focuses on punishment, or whether we at least try to reform the youngest offenders before consigning them to adult prison where their likelihood of becoming a lifelong criminal is so much higher," said Judith Gweon, head of the Writs and Appeals Unit in the Riverside County public defender's office. The appellate court's position, Gweon added, is one "that obviously our office agrees with, and we are going to continue to represent minors like B.M. in the juvenile court system to further rehabilitative efforts."

Meanwhile, a case in Los Angeles County wrapped up in the 2nd District in the first week of December, Narith S. v. Superior Court, B296384 (Cal. App. 2nd Dist. Dec 4, 2019). In Narith, the appellate opinion affirmed the constitutionality of SB 1391. The defendant in the case allegedly shot five people at a party in Long Beach when he was 15.

John Pomeroy, the Los Angeles County deputy DA prosecuting the case, said he wasn't surprised by the 2nd District panel's opinion. "It's consistent with other published cases," he said. "It's the majority view so far, and ultimately the California Supreme Court has already granted review in a few cases, so they'll have the final say."

Pomeroy noted the LA DA's office has until early January to decide whether to file a petition for Narith S. v. Superior Court to the Supreme Court.

Prosecutors' critiques of SB 1391 largely accuse the Legislature of trying to interfere with the goals of Proposition 57, by amending an initiative voters approved. But Marketa Sims, an appellate attorney in the Los Angeles County Independent Juvenile Defender Program who represented the defendant in Narith, framed the bill as a corrective.

"Since the '70s, the minimum age for adult prosecution was 16, and in 1994 with AB 560, it was lowered to 14," Sims said in an interview. "What the Legislature did was raise it back up to 16."

Adding that she is confident of the constitutionality of SB 1391, Sims added, "The attorney general is on our side."