O.G. v. Superior Court

Filed 9/30/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

O.G., 2d Crim. No. B295555 (Super. Ct. No. 2018017144 Petitioner, (Ventura County)

v.

THE SUPERIOR COURT OF VENTURA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

The Legislature cannot overrule the electorate. All power of government ultimately resides in the people. (See People v. Kelly (2010) 47 Cal.4th 1008, 1025; see also DeVita v. County of Napa (1995) 9 Cal.4th 763, 775.) Under the guise of “amendment,” an initiative may not be “annulled” by the Legislature. Consistent with precedent, we “jealously guard” the law as declared by the voters. We hold that Senate Bill No. 1391 is unconstitutional insofar as it precludes the possibility of adult

prosecution of an alleged 15-year-old murderer. (See post, at pp. 4-5.) Fifteen-year-old O.G., despite his age, is deeply enmeshed in youth gang culture. On two separate occasions and in the company of gang cohorts, he is alleged to have been the actual murderer of two people who were in the wrong place at the wrong time. On one occasion, the victim was shot to death. On the other occasion, the victim was stabbed to death. The People of the State of California, by and through the Ventura County District Attorney, seek to try petitioner as an adult. Proposition 57, an initiative passed by the voters allows the district attorney, with the approval of the superior court, to try him as an adult. But effective January 1, 2019, Senate Bill No. 1391 (Stats. 2018, ch. 1012, § 1 (hereafter S.B. 1391)) prohibits even asking the superior court for such permission. Instead, notwithstanding a body count, the facts and circumstances concerning the commission of the offenses, or the background and history of the perpetrator, a 15-year-old alleged murderer must be dealt with in the juvenile court. The trial court approved the district attorney’s request to try petitioner as an adult because it determined, both legally and factually, that he should be prosecuted in adult court. It expressly found that the Legislature could not, consistent with California Supreme Court precedent, i.e., People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson), alter the terms of the initiative. O.G. petitioned for extraordinary relief. We issued a stay of the trial and an order to show cause why the relief prayed for in the petition should not be granted. Four court of appeal opinions have ruled that the Legislature could lawfully “amend” Proposition 57 because the