The opinion
Filed 4/23/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JESSICA M. et al., B343930
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. 24STCP02901)
CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION et al.,
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Criminal Justice Legal Foundation and Kent S. Scheidegger
for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Sara J. Romano, Assistant
Attorney General, Amanda J. Murray, Supervising Deputy
Attorney General, and Jennifer L. Heinisch, Deputy Attorney
General, for Respondents.
_______________________________
In 2008 Sergio Linares pleaded no contest to rape and four
other forcible sex offenses perpetrated against Jessica M. when
he was 25 years old, and he admitted the allegation he used a
knife in committing the crimes. Pursuant to a negotiated plea,
the trial court sentenced Linares under Penal Code section 667.6,
subdivision (c), 1 to an aggregate sentence of 50 years in state
prison, comprising full, consecutive terms of eight years for each
of the five sex offenses, plus 10 years for the weapon
enhancement. In March 2023, at the beginning of the 15th year
of his sentence, Linares received a youth offender parole hearing
pursuant to section 3051, subdivision (b)(1). Jessica appeared at
the hearing to oppose parole, and parole was denied. However,
the California Board of Parole Hearings (Board) set a new parole
suitability hearing.
Jessica and Crime Survivors, Inc., a nonprofit advocacy
group supporting crime victims, contend section 3051 is
unconstitutional as applied to forcible sex offenders sentenced
under section 667.6’s alternative sentencing scheme because
section 3051 amended an initiative statute without a two-thirds
vote of the Legislature or voter approval, in violation of Article II,
section 10, subdivision (c), of the California Constitution.
Specifically, they argue that Proposition 83 (the Sexual Predator
Punishment and Control Act: Jessica’s Law), approved by the
voters in November 2006, amended section 667.6, subdivisions (c)
and (d), which, respectively, authorize or mandate imposition of
“full, separate, and consecutive term[s]” for enumerated sex
offenses. Thus, they argue, section 3051, enacted in 2013, was
1 Further undesignated statutory references are to the Penal
Code.
2
unconstitutional as applied to youth offenders who committed
forcible sex offenses because it provides parole hearings after
only 15 years of incarceration, contravening Proposition 83’s
mandate of longer sentences for sex offenders.
In September 2024 Jessica and Crime Survivors filed a
petition for writ of mandate seeking an order directing the Board
and the California Department of Corrections and Rehabilitation
(CDCR) to terminate Linares’s youth offender parole proceeding
and refrain from enforcing section 3051 as to any California
prisoners who were sentenced to full, consecutive terms under
section 667.6, subdivisions (c) or (d). 2 The superior court
assumed without deciding that Jessica had standing (but not
Crime Survivors); however, the court denied the petition.
Jessica has standing because she has a beneficial interest
in whether Linares is eligible for early parole under section 3051,
in light of amendments to the California Constitution made by
the Victims’ Bill of Rights Act of 2008, commonly known as
Marsy’s Law. (Cal. Const., art. I, § 28.) 3
We conclude Proposition 83 did not make substantive
changes to section 667.6, subdivisions (c) and (d). Section 667.6
provided for imposition of full, consecutive sentences for
2 Although the writ petition named Linares as a real party in
interest, Linares did not participate in the writ proceedings and
is not a party to this appeal.
3 Because Jessica has standing, and “the significant legal
issues before us are not affected by the standing issue,” we do not
address whether Crime Survivors also has standing to bring this
action. (Strauss v. Horton (2009) 46 Cal.4th 364, 399, fn. 6,
abrogated on another ground by Obergefell v. Hodges (2015) 576
U.S. 644.)
3
enumerated forcible sex offenses from the time of its enactment
in 1979. In restating section 667.6, Proposition 83 moved the list
of qualifying offenses set forth in subdivisions (c) and (d) to a new
subdivision (e) and clarified and streamlined other language in
subdivisions (c) and (d), but the only substantive changes were to
expand the list of qualifying offenses set forth in subdivision (e).
Further, we are not persuaded by Jessica and Crime Survivors’
contention that restating section 667.6 was integral to the voters’
goals in enacting Proposition 83, which, as expressed in the ballot
materials, focused on implementing residency and other
restrictions on convicted sex offenders in the community and
increasing punishments for sexually violent predators and child
molesters. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Linares’s Offenses, Conviction, and Parole Hearing 4
At around 5:30 a.m. on July 26, 2008, Jessica, who was
23 years old at the time, was waiting alone at a bus stop in Los
Angeles to commute to an early shift at work. Linares, a
stranger to Jessica, sat down next to her and raised a knife to her
throat. Linares forced her at knifepoint to walk to his vehicle
and get into the passenger seat. Linares, still brandishing the
knife, drove to a secluded area, parked, and ordered Jessica to get
into the back seat and undress. Linares then forced Jessica to
orally copulate him, and thereafter he digitally penetrated her
vagina, raped her, sodomized her, orally copulated her, and then
4 Our summary of Linares’s offenses and conviction is based
on the allegations in Jessica and Crime Survivors’ writ petition
and the Los Angeles County District Attorney’s February 23,
2023 section 1203.01 statement of view regarding parole.
4
robbed her. Linares was 25 years, eight months old at the time of
the offenses.
Linares was charged with forcible rape (§ 261, subd. (a)(2)),
forcible sodomy (§ 286, subd. (c)(2)), forcible digital penetration
(§ 289, subd. (a)(1)), two counts of forcible oral copulation (§ 288a,
subd. (c)(2)), and robbery (§ 211). For each of the five sex
offenses, Linares was alleged to have committed a forcible sex
offense under circumstances involving kidnapping and the use of
a deadly weapon within the meaning of the one-strike law
(§ 667.61), and it was alleged as to all six counts that Linares
used a deadly weapon (§ 12022.3, subd. (a)).
Linares’s potential maximum sentence was 136 years to life
in state prison. However, he entered into a negotiated plea under
which he pleaded guilty to the five forcible sex offenses and
admitted the allegation he used a knife in committing the
offenses (but not the allegation under section 667.61), and he was
sentenced to the full upper term of eight years on each count, to
run consecutively pursuant to section 667.6, subdivision (c), plus
10 years for the deadly weapon enhancement, for an aggregate
sentence of 50 years in prison.
Linares qualified for and received a youth offender parole
hearing on March 29, 2023, when he was serving the 15th year of
his sentence. Jessica asserted her right to attend the hearing
and provided a victim impact statement. The Los Angeles
County District Attorney, in his section 1203.01 statement of
view for the hearing, described the offenses and impact on
Jessica, and he explained the reason for the negotiated plea:
“Facing overwhelming evidence of guilt, [Linares] sought the
benefit of a determinate term. The People agreed to a plea prior
to preliminary hearing for a substantial sentence to ensure public
5
safety, and to prevent [Jessica] from having to endure periodic
parole hearings in the future.” The Board denied parole for three
years, although it later advanced Linares’s next eligibility
hearing.
On June 29, 2024 the Board notified Jessica that a parole
eligibility hearing had been scheduled for October 2. On
September 10 Jessica and Crime Survivors filed their writ
petition, and on September 26 they applied for a temporary
restraining order to enjoin the hearing, which the superior court
denied. At the October 2 parole eligibility hearing, however,
Linares stipulated that he would be unsuitable for parole for
another three years.
B. The Petition
In their verified writ petition, Jessica and Crime Survivors
requested a writ of mandate (Code Civ. Proc., § 1085) (or in the
alternative a writ of prohibition (id., § 1103)) directing the Board
and CDCR to cancel Linares’s pending parole hearing, barring
any further parole hearings for Linares, and barring Linares’s
release prior to completion of the full, consecutive terms of his
sentence. They further sought orders “forbidding statewide any
parole hearing for or releases of inmates sentenced to full,
separate and consecutive terms under subdivisions (c) or (d) of
section 667.6 . . . earlier than the completion of sentences as
authorized by those provisions; and . . . forbidding release of any
prisoners illegally granted parole as described above.”
The petition alleged the bills enacting and amending
section 3051 were void to the extent they conflicted with
section 667.6, subdivisions (c) and (d), as enacted by
Proposition 83, because the bills were not passed by a vote of two-
thirds of both the Senate and Assembly as required under
6
Proposition 83 and the California Constitution. Consequently, as
alleged, the Board’s “decision[s] to schedule a parole suitability
hearing for [Linares] and other similarly situated prisoners
sentenced [under section] 667.6 are void.” Jessica and Crime
Survivors alleged they had a beneficial interest in the
proceedings. CDCR and the Board in their answer disputed the
petition’s claims and asserted that Jessica and Crime Survivors
did not have standing to demand that Linares (or any
incarcerated person) be denied a youth offender parole hearing
under section 3051. 5
Jessica submitted a declaration attesting to the injuries she
suffered and continued to suffer as a result of Linares’s parole
proceedings, describing how the proceedings caused her trauma
to resurface and undermined assurances she received at the time
of Linares’s sentencing that he would serve 50 years. Patricia
Wenskunas, the founder and chief executive officer of Crime
Survivors, submitted a declaration in which she attested that
Crime Survivors was a nonprofit California corporation that
provided advocacy and support for victims of crime, including
“services to victims who oppose parole for the perpetrators of the
crimes against them.”
5 CDCR and the Board also alleged that because Linares had
stipulated to a three-year postponement of parole eligibility, the
case was not ripe as to a future youth offender parole hearing,
and it was moot as to the October 2, 2024 hearing. They do not
raise these contentions on appeal, and we conclude the issues on
appeal are justiciable because the same issues raised in this
appeal will be at issue with respect to future youth offender
parole hearings for Linares.
7
After hearing argument of counsel, the superior court on
December 16, 2024 issued a 15-page order denying the petition.
In its order, the court assumed without deciding that Jessica had
standing to challenge Linares’s parole proceedings, and her
challenge was ripe. However, it found that Crime Survivors did
not have standing. The court found Proposition 83 did not
substantively amend section 667.6, subdivision (c). 6
On January 21, 2025 the superior court entered a judgment
denying the petition. Jessica and Crime Survivors timely
appealed.
DISCUSSION
A. Statutory Framework
1. Consecutive sentencing under section 667.6
In 1976, as part of the Uniform Determinate Sentencing
Act (Stats. 1976, ch. 1139, p. 5061 et seq.), the Legislature
enacted section 1170.1, which “governs the calculation and
imposition of a determinate sentence when a defendant has been
convicted of more than one felony offense.” (People v. Williams
(2004) 34 Cal.4th 397, 402; accord, People v. Sasser (2015)
61 Cal.4th 1, 8-9.) Under section 1170.1, subdivision (a), the
sentencing court designates one of the offenses as a principal
term and imposes on that offense the “greatest term of
imprisonment”; sentences on consecutive terms for other offenses
(the subordinate terms) are limited to one-third of the middle
6 The superior court did not address whether the changes
made by Proposition 83 to section 667.6, subdivision (d),
constituted substantive amendments.
8
term provided for those offenses. (Williams, at p. 402; see Sasser,
at p. 9.)
The Legislature enacted section 667.6 in 1979 to create an
alternative sentencing scheme that provides longer sentences for
defendants convicted of specified forcible sex offenses. (People v.
Sasser, supra, 61 Cal.4th at p. 9; see Stats. 1979, ch. 944, § 10,
p. 3258.) As relevant here, section 667.6, subdivision (c),
authorizes the trial court to impose a “full, separate, and
consecutive term” for each conviction for an enumerated sex
offense, and subdivision (d) requires imposition of a full,
separate, and consecutive term if the offenses “involve separate
victims or involve the same victim on separate occasions.” 7
Prior to September 19, 2006 (two months before enactment
of Proposition 83), 8 section 667.6, subdivision (c), stated, as
relevant here: “In lieu of the term provided in Section 1170.1, a
full, separate, and consecutive term may be imposed for each
violation of [enumerated sex offenses] whether or not the crimes
were committed during a single transaction. If the term is
imposed consecutively pursuant to this subdivision, it shall be
served consecutively to any other term of imprisonment, and
shall commence from the time the person otherwise would have
7 Section 667.6, subdivisions (a) and (b), also part of the
statute’s original enactment, direct the sentencing court to
impose a five-year sentence enhancement for repeat sex offenders
(§ 667.6, subd. (a)) and a 10-year enhancement for offenders who
served two or more prior prison terms for enumerated sex
offenses (id., subd. (b)).
8 As we will discuss, section 667.6 was amended, effective
September 20, 2006, prior to enactment of Proposition 83.
9
been released from imprisonment.” (See Stats. 2002, ch. 787,
§ 16.)
The enumerated sex offenses in section 667.6,
subdivision (c), included section 261, subdivision (a)(2), (3), (6),
and (7) (rape by force, incapacitation, threat of retaliation, or
threat of arrest); section 262, subdivision (a)(1), (4), and (5)
(spousal rape); section 264.1 (rape or sexual penetration in
concert with another); section 286, subdivision (k) (sodomy by
public official against victim’s will); section 288, subdivision (b)
(forcible lewd acts on a child or by a caretaker on a dependent
adult); section 288a, subdivision (k) (oral copulation by public
official against victim’s will); section 288.5 (continuous sexual
abuse of a child); section 289, subdivision (a) (forcible sexual
penetration); and sodomy or oral copulation in violation of
section 286 or 288a “by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury.” The enumerated offenses
also included violation of section 220 (assault with intent to
commit specified sex offenses) but excluded assault with intent to
commit mayhem and limited qualifying assaults (with one
exception) to those where the offender had a prior conviction of
section 220. (See Stats. 2002, ch. 787, § 16.)
Prior to September 19, 2006, section 667.6, subdivision (d),
provided in relevant part: “A full, separate, and consecutive term
shall be served for each violation [of enumerated sex offenses] if
the crimes involve separate victims or involve the same victim on
separate occasions.” (See Stats. 2002, ch. 787, § 16.) The
enumerated sex offenses under section 667.6, subdivision (d),
10
included all offenses listed in subdivision (c), except for
continuous sexual abuse of a child under section 288.5. 9
2. Proposition 83
Proposition 83, approved by the voters in the general
election on November 7, 2006, was a “‘wide-ranging initiative
intended to “help Californians better protect themselves, their
children, and their communities” [citation] from problems posed
by sex offenders by “strengthen[ing] and improv[ing] the laws
that punish and control sexual offenders.”’” (In re Taylor (2015)
60 Cal.4th 1019, 1022, quoting Prop. 83, §§ 2(f), 31; accord, In re
E.J. (2010) 47 Cal.4th 1258, 1263.) The proposition was named
“Jessica’s Law” after Jessica Lunsford, a nine-year-old Florida
girl who was “kidnapped, assaulted, and buried alive by a
convicted sex offender who had failed to report where he lived.”
(Voter Information Guide, Gen. Elec. (Nov. 7, 2006) (Voter
Information Guide), Arguments in Favor of Prop. 83, p. 46.)
In the Official Title and Summary printed in the Voter
Information Guide, the Attorney General stated Proposition 83
“increases penalties for violent and habitual sex offenders and
child molesters”; “prohibits registered sex offenders from residing
within 2,000 feet of any school or park”; “requires lifetime Global
9 Effective January 1, 1990, Assembly Bill No. 2212 (1989-
1990 Reg. Sess.) added the offense of continuous sexual abuse of a
child under section 288.5 to the Penal Code and amended
section 667.6, subdivision (c), to include section 288.5 in the list of
enumerated sex offenses. (Stats. 1989, ch. 1402, §§ 4, 7.) The
legislation did not add section 288.5 to the list of enumerated
offenses in subdivision (d), an omission that is not explained in
the legislative history.
11
Positioning System [GPS] monitoring of felony registered sex
offenders”; “expands the definition of sexually violent predator”;
and “changes current two-year involuntary civil commitment for
a sexually violent predator to an indeterminate
commitment . . . .” (Voter Information Guide, Official Title and
Summary, p. 42, capitalization omitted.)
The Legislative Analyst, in turn, stated in the Voter
Information Guide that the proposition “[i]ncrease[s] penalties for
[s]ex [o]ffenses” in five respects: it “broadens the definition of
certain sex offenses”; “provides for longer penalties for specified
sex offenses,” for example, “expand[ing] the list of crimes that
qualify for life sentences in prison”; “prohibits probation in lieu of
prison for some sex offenses”; “eliminates early release credits for
some inmates convicted of certain sex offenses (for example,
habitual sex offenders who have multiple convictions for felony
offenses such as rape)”; and “extends parole for specified sex
offenders, including habitual sex offenders.” (Voter Information
Guide, Analysis by the Legislative Analyst, p. 43, boldface and
italics omitted.)
As a whole, Proposition 83 made changes to more than two
dozen existing statutes, including Penal Code sections 209, 220,
264.1, 269, 290.3, 311.11, 667.5, 667.51, 667.6, 667.61, 667.71,
1203.06, 1203.065, 1203.075, 3000, 3001, 3003, 3003.5, 3004,
12022.75, and Welfare and Institutions Code sections 6600,
6600.1, 6601, 6604, 6604.1, 6605, and 6608. (Prop. 83, §§ 3-5, 7-
17, 19-30.) The proposition also added two sections to the Penal
Code: section 288.3 (a new offense of communicating with a minor
with the intent to commit a sex offense) and section 3000.07
(mandatory GPS monitoring during parole). (Prop. 83, §§ 6, 18.)
12
Proposition 83’s most prominent change to section 667.6
was its removal of the list of qualifying forcible sex offenses found
in each of subdivisions (a), (c), and (d), and its placement of the
qualifying offenses into a new subdivision (e), which was then
incorporated by reference into the existing provisions. 10 (Prop.
83, § 11.) The list of qualifying offenses was also expanded to
include in subdivision (e)(8) the offense of sexual penetration in
violation of section 289, subdivision (g) (sexual penetration under
threat by public official to incarcerate, arrest, or deport), and in
subdivision (e)(9) an expanded category of assaults with intent to
commit a specified sexual offense in violation of section 220.
Specifically, subdivision (e)(9) added assault with the intent to
commit mayhem as a qualifying assault, and it removed the
requirement that an offender previously have been convicted of a
section 220 offense. (Prop. 83, § 11.)
As indicated in the Voter Information Guide with
italicization and strikethrough text, Proposition 83 modified
section 667.6, subdivision (c), as follows:
“In lieu of the term provided in section 1170.1, a full,
separate and consecutive term may be imposed for each
violation of violation of Section 220, other than an assault
10 Section 667.6, former subdivision (e), authorizing counties
to receive a percentage of collections of victim assistance fines,
was renumbered as subdivision (f). Language in section 667.6,
subdivisions (a) and (b), authorizing imposition of victim
assistance fines, was also moved into subdivision (f). (Prop. 83,
§ 11.) The enhancements in subdivisions (a) and (b) for prior
convictions were expanded by removing the requirement that a
qualifying prior conviction have been committed within the past
10 years, and subdivision (e)(10) was added to include analogous
offenses in other jurisdictions as qualifying offenses.
13
with intent to commit mayhem, provided that the person
has been convicted previously of violating Section 220 for
an offense other than an assault with intent to commit
mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of
Section 261, paragraph (1), (4), or (5) of subdivision (a) of
Section 262, Section 264.1, subdivision (b) of Section 288,
Section 288.5 or subdivision (a) of Section 289, of
committing sodomy in violation of subdivision (k) of
Section 286, of committing oral copulation in violation of
subdivision (k) of Section 288a, or of committing sodomy or
oral copulation in violation of Section 286 or 288a by force,
violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person [list
of offenses] whether or not the crimes were committed
during a single transaction an offense specified in
subdivision (e) if the crimes involve the same victim on the
same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at
least one offense specified in subdivision (e). If the term is
imposed consecutively pursuant to this subdivision, it shall
be served consecutively to any other term of imprisonment,
and shall commence from the time the person otherwise
would have been released from imprisonment. The term
shall not be included in any determination pursuant to
Section 1170.1. Any other term imposed subsequent to that
term shall not be merged therein but shall commence at the
time the person otherwise would have been released from
prison.”
(Prop. 83, § 11.)
14
Similarly, the first paragraph of section 667.6,
subdivision (d), was modified as follows:
“A full, separate, and consecutive term shall be served
imposed for each violation of Section 220, other than an
assault with intent to commit mayhem, provided that the
person has been convicted previously of violating
Section 220 for an offense other than an assault with intent
to commit mayhem, paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261, paragraph (1), (4), or (5) of
subdivision (a) of Section 262, Section 264.1, subdivision (b)
of Section 288, Section 288.5 or subdivision (a) of
Section 289, of committing sodomy in violation of
subdivision (k) of Section 286, of committing oral copulation
in violation of subdivision (k) of Section 288a, or of
committing sodomy or oral copulation in violation of
Section 286 or 288a by force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim
or another person [list of offenses] whether or not the
crimes were committed during a single transaction
[enumerated offenses] an offense specified in subdivision (e)
if the crimes involve separate victims or involve the same
victim on separate occasions.”
(Prop. 83, § 11.) The remaining paragraphs in subdivision (d)
were unchanged. (Ibid.)
Finally, Proposition 83 included an amendment clause
stating, “The provisions of this act shall not be amended by the
Legislature except by a statute passed in each house by rollcall
vote and entered in the journal, two-thirds of the membership of
each house concurring, or by a statute that becomes effective
when approved by the voters. However, the Legislature may
15
amend the provisions of this act to expand the scope of their
application or to increase the punishments or penalties provided
herein by a statute passed by a majority vote of each house
thereof.” (Prop. 83, § 33.)
3. Senate Bill No. 1128
At the same time the campaign to enact Proposition 83
proceeded, the Legislature considered similar, wide-ranging
changes to the law governing sex offenses proposed by Senate Bill
No. 1128 (2005-2006 Reg. Sess.), the Sex Offender Punishment,
Control, and Containment Act of 2006 (Senate Bill 1128), which
was first introduced on January 9, 2006. (See People v. Castillo
(2010) 49 Cal.4th 145, 149.) As the Supreme Court explained in
Castillo, “Even before Proposition 83 officially qualified for the
ballot [in April 2006], but in light of that impending initiative
measure, [Senate Bill 1128] was introduced in the Legislature as
urgency legislation—meaning that if passed by both houses of the
Legislature by a two-thirds vote, it would become effective upon
signature of the Governor, prior to the November election.”
(Ibid.) The Legislature passed Senate Bill 1128, and the
Governor signed it as urgency legislation, effective September 20,
2006. (Ibid.)
Senate Bill 1128 made virtually identical changes to
section 667.6 as those made by Proposition 83. (Compare
Stats. 1993, ch. 127, § 32 with Prop. 83, § 33.) Although Senate
Bill 1128 became effective 48 days before the voters enacted
Proposition 83, the Voter Information Guide for the
November 2006 general election was issued on August 14, prior
to the bill’s enactment. Consequently, the ballot materials
available to the voters described Proposition 83’s changes to the
16
Penal and Welfare and Institutions Codes (and presented the
changes in redlined format) using the versions of the code
sections in place prior to Senate Bill 1128’s amendments.
4. Youth offender parole under section 3051
In Graham v. Florida (2010) 560 U.S. 48, 74, the United
States Supreme Court, emphasizing juvenile offenders’ “capacity
for change and limited moral culpability,” held that imposition of
a sentence of life without parole on a juvenile offender who did
not commit homicide violated the Eighth Amendment’s
prohibition of cruel and unusual punishment. Two years later, in
Miller v. Alabama (2012) 567 U.S. 460, 477, the court extended
this holding to the imposition of a mandatory sentence of life
without parole on a juvenile convicted of murder because the
mandatory penalty “precludes consideration of [the juvenile’s]
chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and
consequences.” Shortly after Miller was decided, the California
Supreme Court held in People v. Caballero (2012) 55 Cal.4th 262,
267-268 that the Eighth Amendment analysis in Graham also
applied to sentences that are the “functional equivalent of a life
without parole sentence.”
“To bring juvenile sentencing in California into conformity
with Graham, Miller and Caballero, the Legislature enacted
Senate Bill No. 260 (2013-2014 Reg. Sess.) . . . , effective
January 1, 2014, adding sections 3051 and 4801, subdivision (c),
to the Penal Code.” (People v. Ochoa (2020) 53 Cal.App.5th 841,
848; see People v Caballero, supra, 55 Cal.4th at p. 269, fn. 5 [“We
urge the Legislature to enact legislation establishing a parole
eligibility mechanism.”].) Under section 3051, the Board is
17
required to conduct a youth offender parole hearing for eligible
youth offenders after they have been incarcerated for 15, 20, or
25 years, depending on the term of the “controlling offense.”
(§ 3051, subds. (a) & (b).) As relevant here, section 3051,
subdivision (b)(1), now provides, “A person who was convicted of a
controlling offense that was committed when the person was
25 years of age or younger and for which the sentence is a
determinate sentence shall be eligible for release on parole at a
youth offender parole hearing during the person’s 15th year of
incarceration.”
The Legislature has amended section 3051 several times,
expanding eligibility for youth offender parole. (See Stats. 2015,
ch. 471, § 1, eff. Jan. 1, 2016 (Sen. Bill 261); Stats. 2017, ch. 675,
§ 1, eff. Jan. 1, 2018 (Assem. Bill 1308); Stats. 2017, ch. 684,
§ 1.5, eff. Jan. 1, 2018 (Sen. Bill 394); Stats. 2019, ch. 577, § 2, eff.
Jan. 1, 2020 (Assem. Bill 965).) It is undisputed that neither
Senate Bill No. 260 nor any of the bills amending section 3051
were passed by a vote of two-thirds of both the Senate and
Assembly.
B. Writ Relief and Standard of Review
“A writ of mandate ‘may be issued by any court to any
inferior tribunal, corporation, board, or person, to compel the
performance of an act which the law specially enjoins, as a duty
resulting from an office, trust, or station . . . .’” (Kavanaugh v.
West Sonoma County Union High School Dist. (2003) 29 Cal.4th
911, 916, quoting Code Civ. Proc., § 1085, subd. (a).) To prevail, a
petitioner must show a “‘“a clear, present . . . ministerial duty on
the part of the respondent”’ . . . [and] a correlative ‘“clear, present
and beneficial right in the petitioner to the performance of that
duty.”’” (People v. Picklesimer (2010) 48 Cal.4th 330, 340; accord,
18
Hayes v. Temecula Valley Unified School Dist. (2018)
21 Cal.App.5th 735, 746.) A writ of mandate is “appropriate for
challenging the constitutionality or validity of statutes or official
acts.” (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 751; accord,
Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289, 305.)
Unless the law provides otherwise, the petitioner bears the
burden of proof in a mandate proceeding under Code of Civil
Procedure section 1085. (American Coatings Assn. v. South Coast
Air Quality Management Dist. (2012) 54 Cal.4th 446, 460; accord,
City of Marina v. County of Monterey (2023) 97 Cal.App.5th 17.)
“In reviewing a judgment granting or denying a writ of mandate
petition, . . . [o]n questions of law, including statutory
interpretation, the appellate court applies a de novo review and
makes its own independent determination.” (Hayes v. Temecula
Valley Unified School Dist., supra, 21 Cal.App.5th at p. 746;
accord, Boyd v. Central Coast Community Energy (2023)
96 Cal.App.5th 136, 142.) “However, in reviewing the record, we
do not reweigh the evidence. Instead, we presume that the
superior court’s findings of fact are correct and review those
findings for substantial evidence, crediting the evidence
supporting the prevailing party and drawing all reasonable
inferences in that party’s favor.” (Boyd, at p. 142; accord,
McGroarty v. Los Angeles Unified School Dist. (2021)
61 Cal.App.5th 258, 266 [“[i]n reviewing the trial court’s ruling on
a petition for a writ of mandate, we ‘defer[] to a trial court’s
factual determinations if supported by substantial evidence’”].)
19
C. Jessica Has Standing To Challenge the Constitutionality of
Section 3051 as Applied to Forcible Sex Offenders Sentenced
Under Section 667.6, Subdivision (c)
“As a general rule, a party must be ‘beneficially interested’
to seek a writ of mandate.” (Save the Plastic Bag Coalition v.
City of Manhattan Beach (2011) 52 Cal.4th 155, 165 (Save the
Plastic Bag); accord, Code Civ. Proc., § 1086 [writ may issue
“upon the verified petition of the party beneficially interested”].)
“‘The requirement that a petitioner be “beneficially interested”
has been generally interpreted to mean that one may obtain the
writ only if the person has some special interest to be served or
some particular right to be preserved or protected over and above
the interest held in common with the public at large.’” (Save the
Plastic Bag, at p. 165; accord, Synergy Project Management, Inc.
v. City and County of San Francisco (2019) 33 Cal.App.5th 21, 30-
31 [contractor on project had beneficial interest in determination
whether awarding authority had right under state law to
determine whether subcontractor should be replaced].) The
beneficial interest requirement “is equivalent to the federal
‘injury in fact’ test, which requires a party to prove by a
preponderance of the evidence that it has suffered ‘an invasion of
a legally protected interest that is “(a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.”’” (Associated Builders & Contractors, Inc. v. San
Francisco Airports Com. (1999) 21 Cal.4th 352, 362 (Associated
Builders); accord, Save the Plastic Bag, at p. 165.)
Jessica has a beneficial interest in Linares’s parole
proceedings pursuant to amendments to article 1, section 28 of
the California Constitution made by the Victims’ Bill of Rights
Act of 2008 (Marsy’s Law). Marsy’s Law, adopted by voter
20
initiative, “broadly mandates notice to victims and an
opportunity to be heard at ‘parole or other post-conviction release
proceedings’ before prisoners obtain early release from prison.”
(Santos v. Brown (2015) 238 Cal.App.4th 398, 404, citing Cal.
Const., art. I, § 28, subd. (b)(7); see Cal. Const., art. I, § 28,
subd. (b)(15) [crime victims are entitled “[t]o be informed of all
parole procedures, to participate in the parole process, to provide
information to the parole authority to be considered before the
parole of the offender, and to be notified, upon request, of the
parole or other release of the offender”].) Marsy’s Law also
amended the parole statutes “to limit the frequency of parole
applications and require the [Board] to consider victims’ views
and interests in making parole decisions (§ 3041.5), . . . and to
make the parole board responsible for protecting victims’ rights
in the parole process (§ 3044).” (Santos, at p. 413.)
Further, the preamble to Marsy’s law recognizes that crime
victims have a “collectively shared right to expect that persons
convicted of committing criminal acts are sufficiently punished in
both the manner and the length of the sentences imposed by the
courts . . . . This right includes the right to expect that the
punitive and deterrent effect of custodial sentences imposed by
the courts will not be undercut or diminished by the granting of
rights and privileges to prisoners that are not required [by law].”
(Cal. Const., art. I, § 28, subd. (a)(5)). The preamble also
acknowledges that “frequent and difficult parole hearings that
threaten to release criminal offenders, and the ongoing threat
that the sentences of criminal wrongdoers will be reduced,
prolong the suffering of crime victims for many years after the
crimes themselves have been perpetrated.” (Id., subd. (a)(6).)
21
Jessica submitted a victim impact statement and appeared
at Linares’s first parole hearing in March 2023. As she attested
in her declaration, appearing at Linares’s parole hearing was
traumatizing and undermined the assurances she was given at
sentencing that Linares would serve a lengthy prison sentence
without the prospect of an early release. These are interests
unique to a crime victim that are not held by the general public. 11
D. The Superior Court Did Not Err in Denying the Petition
1. Law governing amendments to initiative statutes
The California Constitution provides in article II,
section 10, subdivision (c), that “[t]he Legislature may amend or
repeal an initiative statute by another statute that becomes
effective only when approved by the electors unless the initiative
statute permits amendment or repeal without the electors’
approval.” Thus, “‘[t]he Legislature may not amend an initiative
statute without subsequent voter approval unless the initiative
permits such amendment, “and then only upon whatever
conditions the voters attached to the Legislature’s amendatory
powers.”’” (People v. Rojas (2023) 15 Cal.5th 561, 568, italics
added; accord, People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 568.) “The evident purpose of limiting the
Legislature’s power to amend an initiative statute ‘“is to ‘protect
the people’s initiative powers by precluding the Legislature from
11 Because we reject Jessica’s challenge to the
constitutionality of section 3051 with respect to Linares’s youth
offender parole hearing, we do not address her request to enjoin
application of section 3051 with respect to all youth offenders in
custody who, like Linares, were sentenced for forcible sex offenses
under section 667.6, subdivision (c).
22
undoing what the people have done, without the electorate’s
consent.’”’” (County of San Diego v. Commission on State
Mandates (2018) 6 Cal.5th 196, 211 (San Diego); accord, People v.
Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 908.)
Proposition 83’s amendment clause requires a two-thirds vote of
both the Senate and Assembly to amend or repeal the “provisions
of this act” (except for legislation that increases punishment).
(Prop. 83, § 33.)
In considering whether the Legislature has
unconstitutionally amended an initiative statute, this inquiry
invariably implicates another provision of the California
Constitution—article IV, section 9, which states “[a] section of a
statute may not be amended unless the section is re-enacted as
amended.” As a result of this provision, “a substantial part of
almost any statutory initiative will include a restatement of
existing provisions with only minor, nonsubstantive changes—or
no changes at all.” (San Diego, supra, 6 Cal.5th at p. 208; accord,
People v. Superior Court of San Diego County (Gooden) (2019)
42 Cal.App.5th 270, 288.) “The rationale for compelling
reenactment of an entire statutory section when only a part is
being amended is to avoid ‘“the enactment of statutes in terms so
blind that legislators themselves were sometimes deceived in
regard to their effect”’ and the risk that ‘“the public, from the
difficulty of making the necessary examination and comparison,
failed to become appr[]ised of the changes made in the laws.”’”
(San Diego, at p. 208.)
23
The Supreme Court in San Diego recognized the absurd
consequences that would result if the Legislature’s mere
restatement of a provision in an initiative stripped the
Legislature of authority to amend the initiative statute, even if
the restatement was only “to renumber the section, correct
punctuation or grammar errors, or substitute gender-neutral
language.” (San Diego, supra, 6 Cal.5th at p. 210.) The court
rejected this broad interpretation of a prohibited amendment,
reasoning it would be more prudent “to assign somewhat more
limited scope to the state constitutional prohibition on legislative
amendment of an initiative statute.” (Id. at p. 214.) The court
articulated the following rule: “When technical reenactments are
required under article IV, section 9 of the Constitution—yet
involve no substantive change in a given statutory provision—the
Legislature in most cases retains the power to amend the
restated provision through the ordinary legislative process. This
conclusion applies unless the provision is integral to
accomplishing the electorate’s goals in enacting the initiative or
other indicia support the conclusion that voters reasonably
intended to limit the Legislature’s ability to amend that part of
the statute.” (Ibid. [holding Prop. 83’s restatement of Welf. &
Inst. Code, §§ 6601-6605 to incorporate the initiative’s expanded
definition of a sexually violent predator contained only technical
restatements of provisions governing state reimbursement of
local administration costs]; accord, People v. Nash (2020)
52 Cal.App.5th 1041, 1064-1065 [Prop. 7’s amendments to the
Penal Code to increase sentences for murder contained only
technical restatement of elements of first and second degree
murder; therefore, Sen. Bill No. 1437’s change in the definition of
murder was not unconstitutional amendment].)
24
2. Proposition 83’s changes to section 667.6,
subdivisions (c) and (d), were not substantive
Jessica and Crime Survivors contend Proposition 83 made
substantive changes to section 667.6, subdivisions (c) and (d),
thereby barring the Legislature’s addition of section 3051 to
shorten the “full, separate, and consecutive” sentences required
for sex offenders under section 667.6 by providing youth offender
parole after 15 years. Proposition 83 did not make substantive
changes to subdivision (c) or (d). 12
As discussed, Proposition 83 made three changes to
section 667.6, subdivision (c), as the law existed in mid-2006,
which were illustrated in the Voter Information Guide with
italicization and strikethrough text. 13 First, the enumeration of
12 The superior court did not address section 667.6,
subdivision (d), because Linares was sentenced under
subdivision (c), for offenses against a single victim on a single
occasion. However, the petition alleged Proposition 83 made the
same changes to subdivisions (c) and (d) that created the
constitutional infirmity in section 3051. We therefore address
the sections together, as do the parties.
13 On appeal, the Attorney General argues Proposition 83
effected only a technical restatement of section 667.6 because it
did not make any changes (except for one typographical
correction) to any provision of the statute as amended by Senate
Bill 1128 seven weeks before the voters approved Proposition 83
(effective September 20, 2006). However, the Attorney General
concedes the Board and CDCR did not raise Senate Bill 1128 in
the superior court (and the court did not consider the bill in
ruling on the petition), arguably forfeiting this contention.
Moreover, the Voter Information Guide addressed section 667.6
as it existed prior to enactment of the changes in Senate Bill 1128
(and the redlined delineation of Proposition 83’s changes was
25
qualifying forcible sex offenses was removed from subdivision (c)
and replaced with the language “any offense specified in
subdivision (e)” (with the list of qualifying offenses moved to
subdivision (e)); second, the phrase “whether or not the crimes
were committed during a single transaction” was replaced with
the phrase “if the crimes involve the same victim on the same
occasion”; and third, the language “[a] term may be imposed
consecutively pursuant to this subdivision if a person is convicted
of at least one offense specified in subdivision (e)” was added. As
the superior court emphasized, the central provision of
subdivision (c), i.e., its authorization of a “full, separate, and
consecutive term” in lieu of a determinate term under
section 1170.1, was not changed.
Section 667.6, subdivision (d), was changed in only two
respects. First, similar to subdivision (c), the enumeration of
forcible sex offenses was removed and replaced with a reference
to subdivision (e). Second, the word “served” was replaced with
the word “imposed” in the sentence “[a] full separate, and
consecutive term shall be served imposed for each violation [of
specified offenses] if the crimes involve separate victims or
involve the same victim on separate occasions.” 14 Not
made using the prior version of section 667.6). Accordingly, the
voters were only apprised of the prior version of section 667.6 and
proposed changes to that version, which is relevant to the voters’
intent in passing Proposition 83. We therefore focus on the
nature of the amendments to section 667.6 as outlined in the
Voter Information Guide and do not reach whether the
amendments made by Senate Bill 1128 removed any
constitutional infirmity.
14 We note that this language conformed section 667.6,
subdivision (d), with subdivision (c), which provided before
26
surprisingly, Jessica and Crime Survivors do not argue this was a
substantive change.
Jessica and Crime Survivors also do not challenge the fact
Proposition 83 modified section 667.6, subdivisions (c) and (d), to
move the lengthy enumeration of offenses that was formerly set
forth in subdivisions (a), (c), and (d), into a single new
provision (e). However, they argue Proposition 83 made
substantive changes to subdivisions (c) and (d) by expanding the
scope of qualifying offenses listed in subdivision (e). First, the
proposition added sexual penetration under threat by public
official to incarcerate, arrest, or deport (§ 289, subd. (g)) as a
qualifying offense under section 667.6, subdivision (e)(8). Second,
it expanded the scope of the qualifying offense of assault with
intent to commit a sex crime (§ 220) by eliminating the
requirement of a prior conviction (see § 667.6, subd. (e)(9)). In
addition, subdivision (e)(6) included the offense of continuous
sexual abuse of a child (§ 288.5), which previously was
enumerated in subdivision (c), but not in subdivision (d).
Although Proposition 83 applied the existing sentencing
scheme for forcible sex offenders to additional offenses—which
appears to be the reason Proposition 83 restated section 667.6—
these are not substantive changes to the sentencing scheme
created by subdivisions (c) and (d). That is, for every forcible sex
offense covered by the pre-Proposition 83 version of section 667.6,
Proposition 83 did not change the standard for whether a trial
court is authorized to impose a consecutive full-term sentence
(subdivision (c)) or mandated to impose a consecutive full-term
Proposition 83 that a full, separate, and consecutive term “may
be imposed for each violation.”
27
sentence (subdivision (d)). Because the expansion of the scope of
the sentencing scheme to include additional offenses was not a
substantive change to the statutory requirements for sentencing
sex offenders, there was no constitutional prohibition on further
changes to the sentencing scheme. (See People v. Bucio (2020)
48 Cal.App.5th 300, 311-312 [Prop. 115’s amendment to
section 189 to expand the scope of first degree felony-murder
liability by adding five qualifying felonies to list of predicate
offenses did not make a substantive change to the elements of
murder, and thus, the Legislature was not constitutionally
prohibited from later modifying the elements of felony-murder by
enacting former § 1170.95]; see also People v. Nash, supra,
52 Cal.App.5th at pp. 1068-1069 [same].) 15
Turning to the second change to section 667.6,
subdivision (c), at first blush the replacement of the phrase
“whether or not the crimes were committed during a single
transaction” (to describe when a full, consecutive sentence “may”
be imposed) with the phrase “if the crimes involve the same
victim on the same occasion” appears substantive. It is not.
From its inception to the present, section 667.6, subdivision (d),
has mandated full, consecutive terms “if the crimes involve
separate victims or involve the same victim on separate
15 We do not reach (and Jessica and Crime Survivors do not
request we reach) whether enactment of section 3051 constituted
an unconstitutional amendment of (1) section 667.6,
subdivisions (c) and (d), as applied to defendants convicted of a
forcible sex offense set forth in section 667.6, subdivision (e)(8) or
(e)(9), that was not a qualifying offense prior to enactment of
Proposition 83, or (2) section 667.6, subdivision (d), as applied to
defendants convicted of continuous sexual abuse of a child
pursuant to section 667.6, subdivision (e)(6).
28
occasions.” Thus, subdivision (c)’s earlier formulation
authorizing full, consecutive terms “whether or not the crimes
were committed during a single transaction” was confusing
because subdivision (d) already mandated a full, consecutive
sentence if there were two victims or sex offenses committed on
two occasions. In practice, therefore, prior to Proposition 83, the
permissive imposition of a full, consecutive sentence under
subdivision (c) would only have had meaning where there was a
single sex offense against a single victim on a single occasion—
the language clarified by Proposition 83. Because Proposition 83
did not change the scope of sex offenders who were subject to
permissive or mandatory full, consecutive sentences, the change
in language was not substantive.
Finally, the addition of the sentence, “[a] term may be
imposed consecutively pursuant to this subdivision if a person is
convicted of at least one offense specified in subdivision (e),” did
not substantively change the requirements for imposition of a
full, consecutive sentence under section 667.6, subdivision (c).
Jessica and Crime Survivors point out that for nearly a decade
after section 667.6, subdivision (c), was enacted, the Courts of
Appeal were divided over whether a defendant who committed a
single enumerated sex offense (in addition to another
determinate-sentence crime) could be sentenced to a full
consecutive term, or whether the defendant had to be convicted of
more than one enumerated sex offense. (See People v. Jones
(1988) 46 Cal.3d 585, 592, fn. 4 [collecting decisions].) But the
Supreme Court resolved the split in Jones, holding
“subdivision (c) vests the sentencing court with discretionary
authority to impose a full, consecutive term for any [enumerated
sex offense] conviction, even when the defendant stands convicted
29
of only one [enumerated sex offense].” (Id. at p. 600.) Jessica and
Crime Survivors concede in light of Jones that the sentence
added by Proposition 83 did not change the law, but they argue
the change was substantive because it “prevents the Supreme
Court from overruling Jones and accepting the alternate
interpretation.” In the absence of any evidence that
Proposition 83 was drafted or understood by the voters to prevent
the Supreme Court from reversing a two-decade-old precedent,
we conclude the additional language was not a substantive
change, but rather, a clarification to conform to settled law.
3. Jessica and Crime Survivors have not shown
section 667.6 was integral to the goals of
Proposition 83
As discussed, under San Diego, supra, 6 Cal.5th at
page 214, the Legislature can amend a provision addressed by an
initiative statute that is only a technical restatement “unless the
provision is integral to accomplishing the electorate’s goals in
enacting the initiative or other indicia support the conclusion
that voters reasonably intended to limit the Legislature’s ability
to amend that part of the statute.” Jessica and Crime Survivors
argue that even if Proposition 83 provided only a technical
restatement of section 667.6, subdivisions (c) and (d), both San
Diego exceptions are met. This argument fails because Jessica
and Crime Survivors have not met their burden to present
evidence Proposition 83’s changes to section 667.6 were “integral”
to the voters’ goals in approving the initiative or that the voters
30
reasonably intended to remove section 667.6, subdivisions (c) and
(d), from the Legislature’s purview. 16
Jessica and Crime Survivors point to a finding in
Proposition 83 that “[e]xisting laws that punish aggravated
sexual assaults, habitual sexual offenders and child molesters
must be strengthened and improved” (Prop. 83, § 2(h)), which,
they argue, shows the proposition is “squarely contrary to any
watering down of section 667.6(c).” But the fact Proposition 83
was intended, among other things, to increase punishment for
aggravated sexual assaults 17 does not show that restatement of
section 667.6’s existing sentencing scheme was integral to the
initiative. Indeed, the narrowness of the substantive changes to
section 667.6 as a whole—adding two forcible sex offenses and
section 288.5 to the list of qualifying offenses (the latter with
respect to subdivision (d))—shows it was not. Moreover, section
667.61 (the one strike law) enhances sentences for aggravated sex
offenses, not section 667.6, which provides an alternative
sentencing scheme for forcible sex offenses. And, as discussed,
substantial portions of the initiative were directed at controlling
and monitoring sex offenders while not in custody and expanding
the definition of sexually violent predators and their period of
16 Jessica and Crime Survivors, as the petitioners, had the
burden to prove the Board and CDCR had a mandatory duty not
to act in contravention of Proposition 83. (American Coatings
Assn. v. South Coast Air Quality Management Dist., supra,
54 Cal.4th at p. 460.)
17 Jessica does not contend that section 667.6, subdivisions (c)
and (d), affect sentences for habitual sexual offenders and child
molesters.
31
commitment. (See Voter Information Guide, Official Title and
Summary, at p. 42.)
The Legislative Analyst identified five ways in which
Proposition 83 “increases the penalties for specified sex offenses.”
(See Voter Information Guide, Analysis by the Legislative
Analyst, at p. 43.) Three of these changes (limits on probation,
elimination of early release credits, and extending parole) (see
ibid.) have nothing to do with sentencing for forcible sex offenses
under section 667.6. The change described as “broaden[ing] the
definition of certain sex offenses” focuses on the expanded
definition of aggravated sexual assault of a child in section 269,
subdivision (a), to include offenders who are at least seven years
older than their victims (instead of 10). (Legislative Analyst, at
p. 43.) Notably, section 269 is not a qualifying offense with
respect to section 667.6, subdivision (c) or (d). The fifth change,
titled “longer penalties for specified sex offenses,” provides as an
example, that the initiative “expands the list of crimes that
qualify for life sentences in prison.” (Legislative Analyst, at
p. 43.) Section 667.6 does not provide for life sentences; the
Legislative Analyst appears to be referring to the changes to
section 667.61 (aggravated sex offenses) and section 667.71
(habitual sex offenders). (See Voter Information Guide, Text of
Proposed Laws, at pp. 131-132). ~(AA 356)~ Proposition 83
touched dozens of statutes, and there is nothing in the record
that suggests the minor changes to section 667.6 were integral to
its goals.
Finally, Jessica and Crime Survivors rely on the fact
Proposition 83, like many initiative measures, contains an
amendment clause that limits amendments to any of its
provisions. We are not persuaded. Their effort to bootstrap the
32
amendment clause to show the voters wanted to insulate every
provision of the statutes restated in the initiative would render
the San Diego test meaningless.
Because Proposition 83 did not substantially change
section 667.6, subdivisions (c) and (d), and Jessica and Crime
Survivors have not shown that those subdivisions were integral
to accomplishment of the electorate’s goals or that the voters
reasonably intended to insulate subdivisions (c) and (d) from
amendment, the Legislature properly amended those provisions
through the ordinary legislative process. Accordingly, Jessica
and Crime Survivors have failed to prove the Board and CDCR
had a duty not to conduct youth offender parole proceedings
under section 3051.
DISPOSITION
We affirm the judgment denying the petition. The parties
are to bear their own costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
33