Resendiz v. Superior Court, No. D036738.

CourtCalifornia Court of Appeals
Writing for the CourtMcDonald
Citation89 Cal.App.4th 1,107 Cal.Rptr.2d 62
PartiesAdam Nieto RESENDIZ, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The People, Real Party in Interest.
Decision Date16 May 2001
Docket NumberNo. D036738.
107 Cal.Rptr.2d 62
89 Cal.App.4th 1
Adam Nieto RESENDIZ, Petitioner,
v.
The SUPERIOR COURT of San Diego County, Respondent;
The People, Real Party in Interest.
No. D036738.
Court of Appeal, Fourth District, Division 1.
May 16, 2001.
Ordered Not Officially Published Aug. 8, 2001.*

[107 Cal.Rptr.2d 64]

Sandra Resnick, El Cajon, for Petitioner Adam Nieto Resendiz.

No appearance for Respondent.

Paul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney, Thomas F. McArdle and Anthony Lovett, Deputy District Attorneys, for Real Party in Interest.

McDONALD, J.


At the March 7, 2000, California general election the voters approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Initiative (Proposition 21). Section 26 of Proposition 21, which became effective the day after the election, amended Welfare and Institutions Code section 707.1 The amendment replaced the former section 707, subdivision (d) in its entirety with a new provision that permits the prosecuting authority, in its discretion, to file certain criminal accusations against juveniles in either the adult criminal court or the juvenile court. As a result, Proposition 21 permits the prosecuting authority to determine in its discretion not only whether a crime should be charged, what crime should be charged and who should be charged, but also which of two legislatively authorized sentencing schemes the court may use to impose sentence if the charges are found true. We conclude that by placing within the discretion of the prosecuting authority the determination of which of two legislatively authorized sentencing schemes are available to the courts, Proposition 21's amendment to section 707, subdivision (d) violates the constitutional principle of the separation of powers between the executive and judicial branches of government.

Briefly summarized, section 707, subdivision (d), as amended by Proposition 21 (hereafter section 707(d)), provides that if

107 Cal.Rptr.2d 65

a juvenile is 16 years old or older at the time he or she is alleged to have committed a specified qualifying offense identified by section 707(d), or is 14 years old or older at the time he or she is alleged to have committed a specified qualifying offense identified by section 707(d), the district attorney is given discretion to either (1) file a petition against the juvenile in juvenile court or (2) prosecute the juvenile as an adult in criminal court. If the district attorney elects to file a petition in juvenile court, the court must on motion conduct a fitness hearing to determine whether the juvenile, if found guilty of the charge, is subject to adult or juvenile penalties. However, if the district attorney elects to prosecute the juvenile as an adult in criminal court and the juvenile is found guilty, the court does not have the option to prescribe a juvenile court disposition; instead, the court must sentence the juvenile as an adult to adult penalties. (Pen. Code, § 1170.17, subd. (a).)

In this case, the San Diego District Attorney filed an accusatory pleading in adult court under section 707(d) against juvenile Resendiz (Petitioner). Under section 707(d) the District Attorney had discretion to file the accusatory pleading in either the adult court or juvenile court. Petitioner challenged the constitutionality of section 707(d) below by demurring to the accusatory pleading (Pen.Code, § 1004), a proper vehicle for asserting the criminal statute under which he was prosecuted is unconstitutional. (Velasco v. Municipal Court (1983) 147 Cal.App.3d 340, 195 Cal.Rptr. 108.) The trial court overruled the demurrer and Petitioner filed with this court a petition for writ of prohibition seeking review of the trial court's order. We issued an order to show cause and the parties waived oral argument.

Petitioner argues section 707(d) is unconstitutional because it violates the separation of powers provision of the California Constitution and is invalid because it deprives him of equal protection of the laws. We conclude that section 707(d) is unconstitutional under the separation of powers doctrine, and it is therefore unnecessary to examine in detail Petitioner's other constitutional arguments.2

Although the Legislature is constitutionally entitled to define crimes and to prescribe the punishments for crimes, Petitioner argues that when the Legislature has prescribed that sentencing alternatives be available on conviction it is the judiciary's role to select from the legislatively-prescribed menu of sentences the disposition appropriate for the individual. Petitioner contends that section 707(d) violates this principle because it gives the executive branch the unchecked authority to prescribe which legislatively-authorized dispositional scheme will be available to the court if the charges are found true.

I
BACKGROUND

A. Separation of Powers Principles

Both the California and United States Constitutions follow the principle of separation of powers among the legislative, executive and judicial branches of government. This principle precludes one branch from exercising, or interfering with the exercise of, the functions or powers of either of the other branches. (Cal. Const., art. Ill, § 3 [explicit declaration]; Springer v. Government of the Philippine

107 Cal.Rptr.2d 66

Islands (1928) 277 U.S. 189, 48 S.Ct. 480, 482, 72 L.Ed. 845 [separation of powers implicit in United States Constitution].) Although we address here the provisions of a statute enacted through the initiative process, the separation of powers principles are applicable and essentially treat a voter-enacted statute as an act of the Legislature. (See generally People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 [applying separation of powers analysis to statute enacted by initiative]; cf. Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 26, 132 Cal.Rptr. 668, 553 P.2d 1140 [electorates power to enact law through initiative subject to same limitations applicable to legislative body].)

The separation of powers doctrine allocates discrete functions to each of the three branches of government. In the arena of criminal law, the power to define crimes and fix penalties is vested solely in the legislative branch, subject to applicable constitutional prohibitions. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 629, 87 Cal.Rptr. 481, 470 P.2d 617.) The power to determine whether to bring charges, against whom to bring charges, and what charges to bring among those potentially available is vested in the prosecuting authority as a member of the executive branch. Separation of powers principles prohibit the judiciary from supervising or interfering with that prosecutorial discretion (People v. Birks (1998) 19 Cal.4th 108, 134-135, 77 Cal.Rptr.2d 848, 960 P.2d 1073) even though a decision to charge one offense rather than another may on conviction require the court to impose a harsher sentence. (United States v. Batchelder (1979) 442 U.S. 114, 122-125, 99 S.Ct. 2198, 60 L.Ed.2d 755.) After the charging decisions have been made and the proceedings instituted, the process leading to conviction or acquittal and the choice of the sentence or other disposition is a judicial function (People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993), and the court's authority to select from the legislatively-prescribed sentencing options cannot be controlled by the prosecution. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 516, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Although the Legislature (or the electorate by way of initiative) may restrict the sentencing options available to the court (ibid.), the courts have repeatedly held that after the Legislature has prescribed the dispositions available to the court, separation of powers principles preclude the Legislature from giving to the prosecutor the power to control the court's selection of the disposition. (See People v. Tenorio, supra, 3 Cal.3d at pp. 94-95, 89 Cal.Rptr. 249, 473 P.2d 993 [legislatively granted power of court to strike allegation for sentencing purposes cannot be conditioned on consent of prosecutor]; People v. Navarro (1972) 7 Cal.3d 248, 258-260, 102 Cal.Rptr. 137, 497 P.2d 481 [although Legislature not required to give court power to commit narcotic addicts to a treatment program "having conferred this power it cannot condition its exercise upon the approval of the district attorney"]; People v. Clay (1971) 18 Cal.App.3d 964, 967-970, 96 Cal.Rptr. 213 [exercise of legislatively conferred power to grant probation cannot be statutorily conditioned on consent of prosecution]; cf. Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 124-128, 95 Cal.Rptr. 524, 485 P.2d 1140 [although the Legislature is not required to give power to a magistrate to reduce a wobbler offense from a felony to a misdemeanor, if it does so the Legislature cannot condition the court's power to make that decision on the approval of the district attorney].)

B. The Juvenile Court System

At common law, persons 14 years and older were deemed to have criminal

107 Cal.Rptr.2d 67

capacity and their crimes were prosecuted in adult court. In the early part of the 20th century state legislatures began creating juvenile court systems in which children under a certain age who committed offenses that would be crimes if committed by adults were instead adjudicated as juvenile delinquents. (In re Gault (1967) 387 U.S. 1, 14-17, 87 S.Ct. 1428, 18 L.Ed.2d 527; LaFave & Scott, Substantive Criminal Law (1986) § 4.11, pp. 566-569.) The Juvenile Court Law enacted in California in 1937, which has undergone numerous subsequent revisions, is designed to avoid ordinary criminal trials and punishments for juveniles charged with criminal conduct in favor of a system of informal hearings and treatment designed to rehabilitate and reform the juvenile offender. (10 Witkin, Summary of Cal. Law (9th ed. 1989) Parent...

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