Filed 10/22/19 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

O.G.,

 Petitioner,

v.

THE SUPERIOR COURT OF 

VENTURA COUNTY,

 Respondent;

THE PEOPLE,

 Real Party in Interest.

 2d Crim. No. B295555

 (Super. Ct. No. 2018017144

 (Ventura County)

 ORDER MODIFYING OPINION

 [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on September 30, 

2019, be modified as follows:

1. On page 2, second paragraph, delete the first full 

sentence beginning with: “The trial court approved the district 

attorney’s request” and replace with: “The trial court, over O.G.’s 

objection, granted the district attorney’s motion to refer the case 

to the probation department for a transfer report to address 

O.G.’s suitability for juvenile court treatment and/or transfer to 
2

adult court for prosecution. (See former Welf. & Inst. Code, §

707, subd. (a)(1).)”

No change in judgment.

 YEGAN, J. GILBERT, P. J. PERREN, J.
Filed 9/30/19 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

O.G.,

 Petitioner,

v.

THE SUPERIOR COURT OF 

VENTURA COUNTY,

 Respondent;

THE PEOPLE,

 Real Party in Interest.

2d Crim. No. B295555

(Super. Ct. No. 2018017144

(Ventura County)

 

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 
2

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 
3

amendment was “consistent” with the goals of Proposition 57. 

(People v. Superior Court (Alexander C.) (2019) 34 Cal.App.5th

994; People v. Superior Court (K.L.) (2019) 36 Cal.App.5th 529.) 

Contrary to the position taken by the Ventura County District 

Attorney, the Attorney General, as amicus curiae, contends that 

the extant court of appeal opinions were correctly decided and 

that the superior court order approving transfer to adult court 

must be vacated. 

Recently, the Fifth Appellate District spoke to the identical 

issue in a 2 to 1 opinion, People v. Superior Court (T.D.) (2019) 38 

Cal.App.5th 360; see also People v. Superior Court (I.R.) (2019) 38 

Cal.Appl.5th 385. The majority in T.D. holds that S.B. 1391 

lawfully amends Proposition 57 because it is “consistent with” 

and will “further” the intent of Proposition 57. As we explain, it 

is not consistent. It is inconsistent as a matter of law. We agree 

with the cogent analysis of the dissent authored by Acting 

Presiding Justice Poochigian. The T.D. majority at least 

recognizes Pearson, supra, 48 Cal.4th 564 but does not ask nor 

answer the straightforward determinative question. (See post, at 

pp. 4-5.)

And even more recently, the Sixth District spoke to the 

identical issue, again in a two to one opinion. (People v. Superior 

Court (S.L.) (Sept. 20, 2019, H046598) __ Cal.App.5th __ [2019 

Cal.App. LEXIS 904].) The majority does not cite Pearson which 

we believe is determinative. We agree with the cogent analysis of 

the dissent authored by Justice Grover.

It does not matter whether treating a 15-year-old alleged 

murderer as a juvenile is wise or unwise. That is not a judicial 

call. What is a judicial call is whether the Legislature may 

prohibit by statute what the electorate has previously authorized
4

by initiative. We disagree with the four court of appeal opinions 

because, frankly, they did not ask nor answer the determinative 

question so aptly framed by Justice Chin for a unanimous 

Supreme Court in Pearson. Three of the four court of appeal 

opinions do not even cite to the Pearson case. Principles of stare 

decisis require adherence to the Pearson rule. (Auto Equity 

Sales, Inc. v. Superior Court (l962) 57 Cal.2d 450, 455.) In our 

view, insofar as S.B. 1391 precludes the possibility of adult 

prosecution of a 15-year-old murderer, it is unconstitutional. 

(Cal. Const., art. II, § 10, subd. (c).)1

The court of appeal opinions seem enamored with the 

history of how 15-year-old alleged murderers have historically

been treated. This is, largely, irrelevant. It is the “overruling” of 

the People’s latest expression of their wishes in 2016 which is the 

starting and ending relevant date. The court of appeal opinions 

analyze the enumerated purposes of Proposition 57. This is not 

irrelevant but the focus is on the trees and not the forest. The 

language of Proposition 57 permits adult prosecution and S.B. 

1391 precludes such prosecution. The expressly stated goal of 

S.B. 1391 is to categorically preclude the possibility of adult court 

treatment of a 15-year-old for specified crimes including murder.

Pearson, supra, 48 Cal.4th at page 571 posits the 

determinative question: “In deciding whether this particular

provision [S.B. 1391] amends Proposition [57], we simply need to 

 

1 (Cal. Const., art. II, § 10, subd. (c) states: “The 

Legislature may amend or repeal a referendum statute. The 

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.” 
5

ask whether it prohibits what the initiative authorizes, or 

authorizes what the initiative prohibits.” Here, the superior 

court correctly ruled that the initiative authorizes the possibility 

of treating a 15-year-old alleged murderer as an adult and that 

S.B. 1391 precludes this possibility. 

S.B. 1391 is a jurisdictional change in substantive criminal 

law/juvenile law. It is not merely procedural. This attempt to 

“overrule” Proposition 57 violates the well settled rule that the 

Legislature may not enact a law that thwarts the initiative 

process without the consent of the people. (E.g., Proposition 103 

Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 

1484; see also People v. Kelly (2010) 47 Cal.4th 1008, 1025-1026 

(Kelly).) If the Legislature wants to change the Proposition 57 

rule, it must submit the issue to the electorate. We “jealously 

guard” the law as declared by the voters. (Kelly, at p. 1025.) 

We also observe that its declaration that S.B. 1391 “finds 

and declares that this act is consistent with and furthers the 

intent of Proposition 57 . . . ” is entitled to no weight. (9 West’s 

Cal. Legislative Service (Stats. 2018, ch. 1021, § 3, p. 6672 (S.B. 

1391)).) This is a self-serving statement designed to bolster the 

attempt to overrule the electorate. Whether the act can be so 

construed presents a legal question for the judiciary. 

Finally, in our view, S.B. 1391 may contravene Proposition 

57’s express purpose to “protect and enhance public safety.” It 

may rationally be stated that S.B. 1391 does the opposite. It 

provides for juvenile treatment versus punishment for a person 

who commits murder or multiple murders. It thus provides less 

protection for the public. And let us not forget that just because 

the People ask for approval to try a 15-year-old as an adult does 

not inexorably mean that the superior court will agree. Who 
6

better than a superior court judge to consider the entire 

evidentiary picture and background of the 15-year-old to make 

this determination? 

The stay order previously issued by this court is vacated. 

The order to show cause is discharged. The petition for 

extraordinary relief is denied. 

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
1

GILBERT, P. J., Concurring.

I am compelled to agree with my colleagues and those in 

other districts who have written dissents that the Legislature 

overstepped its boundary in drafting Senate Bill No. 1391. The 

legislation contradicts the language of Proposition 57. 

My colleagues in other districts who have upheld the 

legislation offer well-intentioned reasons based on what they see 

as the voter’s intent. I am reminded of what is reputed to be 

Justice Holmes’s dictum: His obligation as a judge is to look at 

what the Legislature (here the People) said, not what it (they) 

meant. 

However reasonable the views of my colleagues in other 

districts concerning the voter’s intent in Proposition 57, the 

words of Proposition 57 contradict that view. Our oath of office 

requires us to follow the clear language of the proposition absent 

a constitutional infirmity. Here the constitutional infirmity is in 

Senate Bill No. 1391.

Separation of powers is a guiding principle of our 

democracy. We must preserve this safeguard whatever our views 

about the wisdom of the proposition or the legislative enactments 

concerning that proposition. 

If we fail to adhere to this analysis of legislation, we follow 

a path that can lead to unforeseen consequences in the 

interpretation of future legislation. When the shoe is on the 

other foot, one may get a bunion.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
Kevin J. McGee, Judge

Superior Court County of Ventura

______________________________

Richard Lennon, Executive Director, Jennifer 

Hansen, Staff Attorney under appointment by the Court of 

Appeal and Willard P. Wiksell for Petitioner.

Xavier Becerra, Attorney General, Gerald A. Engler, 

Chief Assistant Attorney General, Thomas S. Patterson, 

Assistant Attorney General, Tamar Pachter and Nelson R. 

Richards, Deputy Attorneys General, as Amicus Curiae on behalf 

of Petitioner.

No appearance for Respondent.

Gregory D. Totten, District Attorney, Michael D. 

Schwartz, Chief Assistant District Attorney, Tate McCallister 

and Michelle Contois, Deputy District Attorneys for Real Party in 

Interest.