Manduley v. Superior Court

KENNARD, J., Dissenting

Historically, in California the decision whether to grant a district attorney’s request that a minor be prosecuted in adult court instead of juvenile court has been a function of the judiciary, a neutral body. In 2000, however, the voters of this state enacted Proposition 21, an initiative measure that among other matters grants a prosecutor arbitrary and virtually unlimited discretion to decide whether a minor should be tried in juvenile or adult court. There is no hearing, and no right to counsel. No standards guide the exercise of discretion. There is no judicial review. This last omission is fatal, for by depriving the judiciary of any role in making or reviewing the decision, this portion of Proposition 21 eliminates an essential check to arbitrary executive power, and thus offends the principle of separation of powers embodied in the California Constitution.

I

The California Constitution expressly provides for the separation of governmental powers among the three branches of state government. (Cal. Const., art III, § 3.) “Although this particular provision dates only from 1972, our state Constitution ‘[fjrom its inception . . . has contained an explicit provision embodying the separation of powers doctrine.’ ” (Obrien v. Jones (2000) 23 Cal.4th 40, 65 [ 96 Cal.Rptr.2d 205 , 999 P.2d 95 ] (dis. opn. of Kennard, J.), quoting Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 [ 51 Cal.Rptr.2d 837 , 913 P.2d 1046 ].)

*592 “ ‘ “[T]he separation of powers principle does not command ‘a hermetic sealing off of the three branches of Government from one another.’ ” ’ ” (Obrien v. Jones, supra, 23 Cal.4th at p. 48 , quoting In re Attorney Discipline System (1998) 19 Cal.4th 582, 602 [ 79 Cal.Rptr.2d 836 , 967 P.2d 49 ].) It is expressed, instead, in a system of checks and balances intended to prevent any branch from attaining arbitrary or inordinate power. This court in Superior Court v. County of Mendocino, supra, 13 Cal.4th at pages 52-53, stated: “Although the language of California Constitution article III, section 3, may suggest a sharp demarcation between the operations of the three branches of government, California decisions long have recognized that, in reality, the separation of powers doctrine ‘ “does not mean that the three departments of our government are not in many respects mutually dependent” ’ [citation] .... Indeed, upon brief reflection, the substantial interrelatedness of the three branches’ actions is apparent and commonplace .... Such interrelationship, of course, lies at the heart of the constitutional theory of ‘checks and balances’ that the separation of powers doctrine is intended to serve.”

The charging power of the district attorney, which the majority cites as an exclusive executive power, illustrates the point. The legislative branch defines those crimes that can be charged, the executive branch decides what crimes to charge, and the judicial branch decides whether to sustain those charges. Before the electorate enacted Proposition 21, a similar system of checks and balances protected the decision whether a minor should be prosecuted as a juvenile or as an adult. Most actions against juveniles had to begin in the juvenile court. (See Welf. & Inst. Code, former § 602, as amended by Stats. 1976, ch. 1071, § 12, p. 4819.) 1 The prosecution, in its discretion, could seek to have the proceeding transferred to adult court. (§ 707, subd. (a).) The juvenile court would hold a hearing and, applying standards established by the Legislature, rule on the prosecutor’s request. (§ 707.)

Proposition 21 seeks to eliminate the required checks and balances. It amended section 602, subdivision (b), declaring some minors statutorily ineligible for juvenile court proceedings. That provision raises no separation of powers issues. But as to those minors who could be prosecuted in either adult court or juvenile court, it allows the prosecutor to make that decision unrestrained by any legislatively prescribed standards and without judicial review. If the decision is to prosecute in adult court, and it later appears that the juvenile court would have been more appropriate, the minor has no remedy because the judicial branch is excluded from the determination. This *593 portion of Proposition 21, in my view, conflicts with the constitutional mandate.

The juvenile court system and the adult criminal courts serve fundamentally different goals. The punishment for serious crimes tried in the criminal courts is imprisonment, and “the purpose of imprisonment for crime is punishment.” (Pen. Code, § 1170, subd. (a)(1).) California Rules of Court, rule 4.410 identifies seven objectives in sentencing a criminal defendant. They include punishment, deterrence, isolation, restitution, and uniformity in sentencing, but they do not include goals important in the treatment of juvenile offenders such as maturation, rehabilitation, or preservation of the family.

In contrast, the juvenile court system seeks not only to protect the public safety, but also the youthful offender. Section 202, subdivision (a) states that the purpose of the juvenile court system is “to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor’s family ties whenever possible . . . .” The statute further provides that “[wjhen the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.” (Ibid.) Indeed even for the most serious offenders—those who will be committed to the California Youth Authority—“community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses.” (§ 1700.)

The practical consequences are immense. An adult court may sentence a defendant to life imprisonment; a juvenile court cannot impose confinement beyond the age of 25. (§§ 607, subd. (b), 1769.) Adult convictions are public but juvenile commitments are sealed (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 778 [ 94 Cal.Rptr. 813 , 484 P.2d 981 ]; 1 Cal. Juvenile Court Practice (Cont.Ed.Bar 1981) § 13-7, p. 337), a difference that affects future employability and many other matters. Adult convictions are criminal in character, and may deprive the person convicted of the right to vote (Cal. Const., art. II, § 4), to serve on a jury (Code Civ. Proc., § 203), to carry firearms (Pen. Code, § 12021) and to enter certain professions (e.g., Gov. Code, § 1029 [peace officers]); juvenile convictions carry no such collateral consequences. Finally, by filing in adult court the prosecutor deprives the juvenile of the varied rehabilitative programs available in juvenile court.

*594 II

Concern with the danger in granting arbitrary power to a person who acts as an advocate, not as an impartial adjudicator, was the underpinning of this court’s decision in the leading case on separation of powers, People v. Tenorio (1970) 3 Cal.3d 89 [ 89 Cal.Rptr. 249 , 473 P.2d 993 ]. There, this court overruled People v. Sidener (1962) 58 Cal.2d 645 [ 25 Cal.Rptr. 697 , 375 P.2d 641 ], which had upheld Health and Safety Code former section 11718’s provision prohibiting a court from dismissing the allegation of a prior conviction without the prior approval of the prosecution. Tenorio relied heavily on the dissenting opinions in Sidener in concluding Health and Safety Code former section 11718 violated the separation of powers doctrine. It quoted Justice B. Rey Schauer’s dissent, observing that he viewed Sidener as ‘“a step toward totalitarian concentration of power in the executive; a power to be exercised without any legislative standard and without possibility of judicial review.’ ” (People v. Tenorio, supra, 3 Cal.3d at p. 93 , quoting People v. Sidener, supra, 58 Cal.2d at p. 673 (dis. opn. of Schauer, J.).) Tenorio also cited Justice Thomas White’s dissent, which stressed the district attorney’s status as an advocate, and argued that vesting such an advocate with unreviewable power to preclude an order striking priors, “ ‘without any impartial tribunal to review his decision . . . seems ... to do violence to our concept of constitutional government, and offends our oft repeated and proud boast that we are a government of laws and not of men.’ ” (People v. Tenorio, supra, at p. 94 , quoting People v. Sidener, supra, 58 Cal.2d at p. 675 (dis. opn. of White, J.).) Distinguishing valid statutes conferring discretion on the Adult Authority (the predecessor of the Department of Corrections), Tenorio noted that in contrast to those statutes, “the discretion section 11718 purports to vest in prosecutors is unreviewable, and may therefore be exercised in a totally arbitrary fashion both in individual cases and by the adoption of county-wide policies precluding dismissal of priors regardless of the circumstances of individual cases.” (Tenorio, at p. 95, italics added.)

We expressed the same concerns in Esteybar v. Municipal Court (1971) 5 Cal.3d 119 [ 95 Cal.Rptr. 524 , 485 P.2d 1140 ], which held unconstitutional a statute (Pen. Code, § 17, former subd. (b)(5)) that required prosecutorial consent before a magistrate could determine that an offense was a misdemeanor. Esteybar said: “[S]ection 17, subdivision (b)(5), purports to vest in the prosecutor, admittedly an advocate, a power which may be exercised in a totally arbitrary fashion without regard to the circumstances of individual cases. Indeed, the prosecutor in the instant case admitted that it was a county-wide policy of the district attorney’s office to refuse to consent to the prosecution of such offenses as misdemeanors unless the defendant first *595 agreed to plead guilty. Under our system of separation of powers, we cannot tolerate permitting such an advocate to possess the power to prevent the exercise of judicial discretion . . . .” (Esteybar, supra, at pp. 125-126 , fn. omitted.)

This court relied on Tenorio and Esteybar in deciding the companion cases of People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59 [ 113 Cal.Rptr. 21 , 520 P.2d 405 ] (On Tai Ho) and Sledge v. Superior Court (1974) 11 Cal.3d 70 [ 113 Cal.Rptr. 28 , 520 P.2d 412 ] (Sledge). On Tai Ho invalidated Penal Code section 1000.2, which required the prosecutor to consent to the diversion of a first time drug offender into a rehabilitation program. Rejecting the contention that the consent requirement did not invade the judicial sentencing power because diversion occurred before sentencing, we said: “Our decision in Esteybar teaches that the issue whether a power is judicial in nature depends not on the procedural posture of the case but on the substance of the power and the effect of its exercise. ... At whatever stage such [prosecutorial] intervention occurs ... it is an integral step in the process leading to the disposition of the case before the court, and therefore constitutes an exercise of judicial authority within the meaning of the constitutional doctrine of separation of powers.” (On Tai Ho, supra, at p. 68 .)

Sledge involved a different section of the same drug diversion law. Penal Code section 1000, subdivision (a)(3), authorized the district attorney to make the initial determination whether a defendant was eligible for diversion. We distinguished On Tai Ho and upheld the statute, because it provided for judicial review of a decision by the district attorney that a defendant was ineligible for diversion. ( Sledge, supra, 11 Cal.3d at pp. 75-76.)

The majority here, however, relies on Davis v. Municipal Court (1988) 46 Cal.3d 64 [ 249 Cal.Rptr. 300 , 757 P.2d 11 ] (hereafter Davis), which, like On Tai Ho and Sledge , involved a diversion statute. San Francisco had established a diversion program, but it provided that diversion was possible only for persons charged with misdemeanors. This provision had the effect of giving the district attorney unreviewable discretion, whenever a defendant was charged with a “wobbler” (a crime that can be either a felony or a misdemeanor), to exclude that defendant from diversion by the device of filing the charge as a felony. The Davis majority upheld this practice, distinguishing this court’s earlier decisions in People v. Tenorio, supra, 3 Cal.3d 93 , and later cases on the ground that all of the prior cases concerned prosecutorial action after charges had been filed. (Davis, at p. 82.) The separation of powers doctrine, Davis said, limits only prosecutorial action during the “ ‘judicial phase’ ” of a criminal proceeding. (Id. at p. 85.) The majority here adopts that reasoning, holding that decisions occurring before *596 the filing of charges fall under the prosecutor’s traditional charging discretion, regardless of their effect on later judicial proceedings. (Maj. opn., ante, at pp. 552-553.)

Davis is factually distinguishable from this case. In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ], this court noted that Davis involved diversion, and “[t]he design of diversion programs is not historically, or necessarily, a judicial function.” (Id. at p. 517.) Thus we concluded that Davis was not relevant to the trial court’s power to strike a prior conviction, a power that has historically been exercised by the judiciary. The same distinction could apply here, for unlike the design of diversion programs, but akin to the power to strike a prior conviction, the decision whether to prosecute a minor in adult or juvenile court has been historically a judicial function. That power has rested exclusively in the hands of the juvenile court from 1915 (see Stats. 1915, ch. 631, § 2, p. 1225), shortly after the Legislature established the juvenile court system in 1909 (see People v. Navarro (1972) 7 Cal.3d 248, 277 [ 102 Cal.Rptr. 137 , 497 P.2d 481 ]; Juvenile Court Act, Stats. 1909, ch. 133, p. 213), until the voters enacted Proposition 21 in 2000.

Although the result in Davis might be defended on the ground that the prosecutorial action involved did not invade a historically judicial function, its analysis is unsound. Davis reasoned that because a court acquires jurisdiction with the filing of charges, nothing that happens before the filing of charges could constitute an invasion of the judicial powers. Three justices dissented in Davis', in my view, they have the better of the argument. Justice Stanley Mosk disagreed that the separation of powers issue depended on the timing of the prosecutor’s action. As the author of On Tai Ho, supra, 11 Cal.3d 59 , and Sledge, supra, 11 Cal.3d 70 , he explained that “those cases turn not on a simple chronological distinction between the ‘charging stage’ of a case and the point at which the case is ‘before the court,’ but rather on the character and consequence of the decision placed in the hands of the district attorney.” (Davis, supra, 46 Cal.3d at p. 90 (dis. opn. of Mosk, J.).) Justice Marcus Kaufman, joined by Justice Edward Panelli, focused on the arbitrary and unreviewable discretion given the district attorney: “[T]he diversion program effectively grants the district attorney unbridled discretion to determine who among those committing wobblers shall be conditionally eligible for diversion and who shall be absolutely ineligible. . . . [¶] . . . [W]hen the executive’s exercise of the charging function also constitutes the exercise of delegated legislative power, as it does in this case, that power must be circumscribed by ‘suitable safeguards ... to guide the power’s use and to protect against misuse’ [citation], or it cannot be upheld.” (Id. at p. 95 (dis. opn. of Kaufman, J.).)

*597 Under the reasoning of Davis, supra, 46 Cal.3d 64 , and the majority opinion here, the Legislature (or the electorate by initiative) can effectively abrogate all of our previous decisions on separation of powers. For example, People v. Tenorio, supra, 3 Cal.3d 89 , invalidated a law that permitted the prosecutor to veto a court order dismissing a prior conviction, but under the majority’s reasoning the Legislature could nullify Tenorio by allowing the prosecutor to specify in the charging papers that certain prior conviction allegations will not be subject to dismissal, and by making that decision binding on the court. Another separation of powers decision, Esteybar v. Municipal Court, supra, 5 Cal.3d 119 , said that principle was violated by a law requiring prosecutorial consent before a magistrate could order that a crime be prosecuted as a misdemeanor; under the majority’s holding, the Legislature could simply authorize the prosecutor, in the charging papers, to specify whether the magistrate could treat the offense as a misdemeanor. A third decision, On Tai Ho, supra, 11 Cal.3d 59 , held invalid a statute requiring prosecutorial consent to diversion; under the majority’s holding the Legislature could simply prohibit diversion unless the prosecutor, in the charging papers, has consented. Indeed, the rationale of Davis and the majority here would permit the enactment of a statute that authorized the prosecutor to make binding and unreviewable determinations, before or at the time of filing charges, as to what judge will hear the case, what evidence will be admitted, and what sentence imposed if the defendant is convicted, thus effectively abrogating the function of the separation of powers doctrine.

m

The majority asserts that because the Legislature has the power to eliminate entirely the jurisdiction of the juvenile court, a statute that confers authority on the prosecutor to bypass that jurisdiction does not usurp an exclusive judicial authority. (Maj. opn., ante, at p. 560.) This is a familiar argument, because it has been repeatedly raised and rejected in separation of powers cases. In Esteybar v. Municipal Court, supra, 5 Cal.3d 119 , the People argued that because the Legislature was not required to give magistrates the power to determine that a charge should be prosecuted as a misdemeanor, the Legislature could condition this power on the consent of the prosecutor. We responded: “[This] argument[] . . . [is] not persuasive. . . . [T]he fact that a particular power has been conferred on a magistrate by statute does not prevent the exercise of that power from being a judicial act for purposes of the doctrine of separation of powers.” (Id. at pp. 126-127; see People v. Tenorio, supra, 3 Cal.3d at p. 94 .) And in People v. Superior Court (Romero), supra, 13 Cal.4th at page 516, we observed that even though the Legislature had the power to abolish judicial discretion to strike a prior conviction allegation, that did not give it the authority to condition that power on the consent of the district attorney.

*598 IV

In my view, Proposition 21 unconstitutionally invaded a judicial function, for the following reasons:

First, almost from the inception of the juvenile court system in California, the decision whether a minor is unfit for juvenile court proceedings has been a judicial function. History alone may not be conclusive (see maj. opn., ante, at pp. 557-558), but it is important, for the division of authority among the three coequal branches of government is largely a product of history.

Second, the decision whether to prosecute in juvenile or adult court is critical, and thus deserving of the due process protections of a judicial proceeding. In Kent v. United States (1966) 383 U.S. 541 [ 86 S.Ct. 1045 , 16 L.Ed.2d 84 ], the United States Supreme Court reviewed an arbitrary ruling of the District of Columbia juvenile court to waive jurisdiction and permit trial in adult court. Overturning that ruling, the high court repeatedly described the decision whether a minor should be tried as a juvenile or an adult as “critically important” (id. at pp. 553, 556, 558, 560, 561 [86 S.Ct. at pp. 1053, 1055, 1056, 1057]), one of “tremendous consequence” (id. at p. 554 [86 S.Ct. at pp. 1053-1054]), and thus deserving and requiring the protection of due process. (Ibid.) In re Harris (1967) 67 Cal.2d 876, 878 [ 64 Cal.Rptr. 319 , 434 P.2d 615 ], noted: “In Kent v. United States[, supra,] 383 U.S. 541 , [553], the Supreme Court held that a juvenile court’s direction that a minor be held for trial as an adult must be based on a hearing that conforms to ‘the basic requirements of due process and fairness. . . .’” People v. Chi Ko Wong (1976) 18 Cal.3d 698, 718 [ 135 Cal.Rptr. 392 , 557 P.2d 976 ], said: “It cannot be denied that the process of certifying a juvenile for criminal proceedings is a critically important action affecting vitally important rights of the juvenile. . . . The certification process must ... be attended by minimum requirements of due process and fair treatment as dictated by the Fourteenth Amendment.” (See Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 775 [ 211 Cal.Rptr. 869 ].)

These cases do not suggest that the critically important decision whether to try the minor in adult or juvenile court should receive due process protections only if it is made after charges have been filed. Yet if the same decision, equally important and consequential, is made before charges are filed, then, according to the majority, the prosecutor has unreviewable discretion, subject only to the most minimal of constitutional constraints prohibiting invidious discrimination or vindictive or retaliatory prosecution. (Maj. opn., ante, at pp. 570-571.) There is no judicial review to correct *599 erroneous decisions, inconsistent decisions, or decisions that certain classes of minors, or all minors, will always be prosecuted in adult court.

Third, at the time of filing charges, the district attorney’s office has limited information—the details of the particular crime, and the minor’s prior criminal history, if any. It may not know the minor’s family, school, or community history, all matters that are important in deciding whether the minor is suitable for juvenile court treatment. It may not know the minor’s view of the matter, and probably has not heard from the minor’s counsel, who has yet to be appointed. There has been no hearing, no testimony, and no receipt of evidence. As a result, the prosecutor, acting with limited information, may err in the decision, and although an error in submitting the minor to juvenile court jurisdiction is correctable, one in assigning the minor to adult court is not.

V

The separation of powers doctrine does not require that the prosecutor take no part in the decision whether a minor should be tried in adult or juvenile court. Because that doctrine envisions that each branch of government acts as a check upon the power of the other branches, the doctrine of separation of powers would be satisfied if the prosecutor’s initial decision were subject to judicial review. Tenorio , in striking down a statute requiring approval of the prosecutor to dismissal of a prior conviction allegation, repeatedly emphasized the absence of judicial review, suggesting that judicial review would have saved the statute. (See People v. Tenorio, supra, 3 Cal.3d 89, 93-95 .) This was confirmed in On Tai Ho, supra, 11 Cal.3d 59 , and Sledge, supra, 11 Cal.3d 70 , which concerned parallel provisions giving prosecutors power to disapprove drug diversion—On Tai Ho held invalid a provision that did not provide for judicial review, Sledge upheld a similar provision because it provided for judicial review. As the majority acknowledges, court decisions in other states upholding laws similar to section 707, subdivision (d) in all but one instance involved laws permitting judicial review. (See cases cited in maj. opn., ante, at pp. 561-562.)

VI

In conclusion, the validity of Proposition 21’s provision giving the prosecutor power to decide whether to prosecute a minor in adult court or juvenile court turns not on the timing of the prosecutor’s decision, but “the substance of the power and the effect of its exercise.” (On Tai Ho, supra, 11 Cal.3d at p. 68.) The power, as I have explained, is unrestrained by legislative standards and susceptible to arbitrary exercise; the effect is profound, *600 determining whether the minor will be prosecuted in a system that stresses punishment or one that stresses rehabilitation. In this setting, the absence of judicial review brings that portion of Proposition 21 into conflict with article III, section 3 of the California Constitution.

The petition of real party in interest for a rehearing was denied April 17, 2002, and the opinion was modified to read as printed above.

Unless otherwise designated, all statutory citations are to the Welfare and Institutions Code.