State high court hears DAs’ challenge on minors tried as adults

Prosecutors seeking to try as an adult a man accused of murdering two people in Ventura County when he was 15 will make the case to the California Supreme Court Tuesday that a 2018 law that prevents them from doing so is unconstitutional.

A decision in their favor would reverse five state courts of appeal and uphold one, effectively returning the minimum age for adult prosecutions in California to 14. The Legislature in 2018 increased the minimum age to 16 when it passed SB 1391 -- the law Ventura County District Attorney Greg Totten argues was an unconstitutional legislative amendment to Proposition 57, a voter-approved initiative that in part gave judges discretion to transfer 14- and 15-year-olds to adult court. O.G. v. Superior Court, S259011.

Totten wants to try the defendant, an alleged gang member identified as "O.G." in court filings, in adult court. The DA alleges the defendant shot and stabbed two people to death in 2018 when he was 15.

Prior to the enactment of Proposition 57 in 2016, prosecutors could bypass juvenile courts in some cases by directly filing criminal charges against minors in adult court. But after voters passed the measure known as the Public Safety and Rehabilitation Act of 2016, judges were given discretion to make transfer decisions.

"The voters entrusted judges, not the Legislature, to balance safety with rehabilitation," wrote Ventura County Deputy District Attorney Michelle J. Contois in court filings. "SB 1391 upends that balance."

Five appellate panels have struck down similar arguments since the law took effect in January 2019.Those decisions were premised on an amendment clause included in Proposition 57 that allows for legislative amendments that are "consistent with and further the intent" of the law. Their rulings held SB 1391 met that criteria.

The 2nd District Court of Appeal in October 2019, however, held that SB 1391 was an unconstitutional legislative amendment to Proposition 57 "insofar as it precludes the possibility of adult prosecution of an alleged 15-year-old murderer." O.G. v. Superior Court of Ventura County, B295555 (2nd. Cal. App. Filed Sept. 30, 2019).

"This attempt to 'overrule' Proposition 57 violates the well settled rule that the Legislature may not enact a law that thwarts the initiative process without the consent of the people," wrote Justice Kenneth R. Yegan in the court's opinion. "If the Legislature wants to change the Proposition 57 rule, it must submit the issue to the electorate."

Attorneys for the California Appellate Project, however, say that decision misconstrued a test established by the high court in 2010 for evaluating the validity of new laws that amend voter-approved initiatives. People v. Superior Court (Pearson) (Cal. App. 4th 2010).

"The [2nd District] held that, under Pearson, if a new law does not allow something that an initiative did allow, then the new law is unconstitutional," wrote Richard B. Lennon, executive director of the California Appellate Project, in court filings. "But contrary to the [court's] truncated analysis, Pearson does not prevent a finding that SB 1391 is a lawful legislative amendment."

In Pearson, the court held that if a new law can be considered an amendment, the next step for determining its constitutionality is to determine whether it satisfies the amendment clause of the existing law it amends.

California Attorney Xavier Becerra filed an amicus brief in the case saying he is "convinced that SB 1391 is in fact an allowable amendment under Proposition 57's express amendment provision."

The California District Attorneys Association took an opposite position.

"We are living in strange times when it can be argued with a straight face that the intent of the persons who voted for Proposition 57 is furthered by both the enactment and elimination of the same provision of that initiative," wrote Santa Clara County Deputy District Attorney Jeff Rubin in an amicus brief on behalf of the DAs' association.

The high court will decide whether SB 1391 satisfies the amendment clause of Proposition 57. Oral argument was set to begin at 9 a.m.