SEE C ONCURRING AND DISSENTING OPINIONS

Filed 8/24/17



## IN THE SUPREME COURT OF CALIFORNIA

) RON BRIGGS, ) ) Petitioner, ) ) S238309
v. ) ) EDMUND G. BROWN, JR., ) as Governor, etc., et al., ) ) Respondents; ) ) CALIFORNIANS TO MEND, NOT END, ) THE DEATH PENALTY, etc., ) ) Intervener. )

________________________________ ____ )

In the November 2016 election California voters approved Proposition 66, the Death Penalty Reform and Savings Act of 2016. (Gen. Elec. (Nov. 8, 2016) § 1.) The measure’s various provisions are intended to facilitate the enforceme nt of judgments and achieve cost savings in capital cases. Petitioner Ron Briggs seeks writ relief from this court, challenging the constitutionality of certain aspects of the proposition. Governor Edmund G. Brown, Jr., Attorney General Xavier Becerra, a nd the Judicial Council of California oppose the petition as respondents. They are joined by intervener Californians to Mend, Not End, the Death Penalty, a campaign committee representing the proponents of the initiative. The issues
raised are of suffici ent public importance to justify the exercise of our original2

jurisdiction in the interest of a prompt resolution. ( Legislature v. Eu (1991) 54 Cal.3d 492, 500.) 1 Petitioner asserts four grounds for relief. He claims Proposition 66 (1)
embraces more t han one subject, as prohibited by the California Constitution; (2) interferes with the jurisdiction of California courts to hear original petitions for habeas corpus relief; (3) violates equal protection principles by treating capital prisoners differentl y from other prisoners with respect to successive habeas corpus petitions; and (4) runs afoul of the separation of powers doctrine by materially impairing the courts’ ability to resolve capital appeals and habeas corpus petitions,
and to manage their docke ts in general. Petitioner’s constitutional challenges do not warrant relief. However, we hold that in order to avoid serious separation of powers problems, provisions of Proposition 66 that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.

I. THE TERMS OF PROPOSITION 66 Proposition 66 includes a series of findings and declarations to the effect that California’s death penalty system is inefficient, wasteful, and subject to protrac ted delay, denying murder victims and their families justice and due

1 Petitioner Briggs, together with John Van de Kamp, sought an original writ from this court the day after the election. After the Secretary of State ce rtified the election results, we granted petitioner’s motion to file an amended and renewed petition. Because both petitions name the Judicial Council as a respondent, Chief Justice Tani Cantil

- Sakauye, as chair of the council, and Justice Ming Chin, as
v ice

- chair, are recused. We stayed the implementation of Proposition 66 to provide time to resolve petitioner’s challenge. After receiving papers in opposition, we issued an order to show cause why the relief sought should not be granted, and continued th e stay pending our decision. While the stay was in effect, Mr. Van de Kamp died, leaving Briggs as the sole petitioner.3

process. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) § 2, p. 212 (Voter Guide).) The measure enacts a series of statutory reforms, which may be grouped into three general catego ries: (1) provisions to expedite review in capital appeals and habeas corpus proceedings; (2) provisions governing the confinement of prisoners sentenced to death and the administration of the death penalty; and (3) provisions pertaining to California’s H abeas Corpus Resource Center. Petitioner does not directly challenge each one of the measure’s provisions. We summarize them all, however, as context for his claim that Proposition 66 unconstitutionally addresses more than one subject. (See part II.A, p ost .) 2
A. Expedited Review Proposition 66 amends Penal Code section 190.6 to give the Judicial Council 18 months to adopt rules and standards for expediting appeals and state habeas corpus review in capital cases. 3 ( § 190.6, subd. (d).) “Within five ye ars of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases.” ( Ibid .) The Judicial Council is directed to monitor the review process and amend the rules and standards as necessary to complete proceedings within the five

- year period. ( Ibid .)
Section 190.6 , s ubdivision (b) , an existing provision, sets a seven

- month limit on the filing of the opening brief in a capital app eal, except upon a showing

2 As in previous challenges to initiative measures, “ we caution that our summary description and interpretation of the measure by no m eans preclude subsequent litigation regarding the meaning or legality of its provisions, apart from the specific issues considered herein. ” ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 341, citing Brosnahan v. Brown (1982) 32 Cal.3d 236, 24 2 ( Brosnahan ), an d Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 2 20.) 3 Hereafter, unspecified statutory citations are to the Penal Code.4

of good cause or when the trial transcript exceeds 10,000 pages. Subdivision (e) of section 190.6 is amended by Proposition 66 to provide that “[t]he failure of the parties or of a court to comply with the time limit in subdivis ion (b) shall not affect the validity of the judgment or require dismissal of an appeal or habeas corpus petition. If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate. The court in which the petition is filed shall act on it within 60 days of filing. ” ( Ibid .) Section 1239.1 declares it the duty of this court to expedite review in capital cases. We must appoint counsel for indigent appellants as soon as possible, and grant extensions of time for briefing only “for compelling or extraordinary reasons.” ( § 1239.1, subd. (a).) Proposition 66 calls on us and the Judicial Council to reevaluate the competency standards for appoi nted counsel in death penalty appeals and habeas corpus proceedings

. “ Experience requirements shall not be limited to defense experience. ” (Gov. Code, § 68665, subd. (b).) The initiative measure extensively revamps the procedures governing habeas corpus petitions in capital cases. Under current practice, habeas corpus proceedings are initiated in this court, which appoints counsel and provides for their compensation. 4 Under the initiative measure, however, “[a] petition filed in any court other than th e court which imposed the sentence should be promptly transferred to that court unless good cause is shown for the petition to be heard by
another court. A petition filed in or transferred to the court which imposed the

4 See Supreme C our t Policies Regarding Cases Arising From Judgments of Death, policy 3 , s tandards governing filing of habeas corpus petitions and compensation of counsel in relation to such petitions, origin ally adopted effective June 6, 1989.5

sentence shall be assigned to the o riginal trial judge unless that judge is unavailable or there is other good cause to assign the case to a different judge. ” ( § 1509, subd. (a).) The superior court is made responsible for appointing counsel to represent indigent prisoners in capital case s. ( § 1509, subd. (b); Gov. Code, § 68662, as amended by Prop. 66.) The initial habeas corpus petition must be filed within a year of the appointment of counsel. ( § 1509, subd. (c).) An untimely initial petition, and any “successive” petition, “ shall b e dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which he or she was convicted or is ineligible for the sentence. ” ( § 1509, subd . (d).) 5 Habeas corpus p roceedings

“ shall be conducted as expeditiously as possible, consistent with a fair adjudication. The superior court shall resolve the initial petition within one year of filing unless the court finds that a delay is necessary to resolve a substantial claim of actual innocence, but in no instance shall the court take longer than two years to resolve the petition. ” ( § 1509, subd. (f).) The court must “issue a statement of decision explaining the factual and legal basis for its dec ision.” ( Ibid .) Petitions that are pending in this court “may” be transferred to the sentencing court. ( § 1509, subd. (g).)

5 “ ‘ Ineligible for the sentence of death ’ means that circumstances exist placing that sentence o ut side the range of the sentencer’ s discretion. Claims of ineligibility include a claim that none of the special circumstances in subdivision (a) of Section 190.2 is true, a claim that the defendant was under the age of 18 at the time of the crime, or a c laim that the defendant has an intellectual disability, as defined in Section 1376. A claim relating to the sentencing decision under Section 190.3 is not a claim of actual innocence or ineligibility for the purpose of this section. ” ( § 1509, subd. (d).)6

Under existing law, there is no right to appeal from a superior court’s
denial of habeas corpus relief. The petitioner may obta in review by filing a new petition in a higher court. ( In re Reed (1983) 33 Cal.3d 914, 918, fn. 2 .) The People have a statutory right to appeal a grant of relief in a capital case directly to this court, under section 1506. Proposition 66 alters these procedures by permitting either party to take an appeal from a superior court’s decision on an initial habeas corpus petition to the court of appeal, and by specifying that “[a] successive petition shall not be used as a means of reviewing a denial of habe as relief.” ( § 1509.1, subd. (a).) The issues on appeal are limited to those raised below, and to claims of ineffective assistance of trial counsel if habeas counsel’s failure to raise such claims itself constituted ineffective assistance. ( § 1509.1,

su bd. (b).) To pursue an appeal from a denial of relief on a successive petition, the petitioner must obtain a certificate of appealability from the superior court or the court of appeal based on a substantial claim for relief pertaining to actual
innocence or ineligibility for the death sentence. ( § 1509.1, subd. (c).) Appeals under section 1509.1, subdivision (c) “ shall have priority over all other matters and be decided as expeditiously as possible. ”
B. Conditions of Confinement and Admin i stration of t he Death Penalty Proposition 66 requires that prisoners sentenced to death perform work in prison and pay 70 percent of their wages and other trust account funds toward
restitution. ( § 2700.1.) The measure amends section 3600 to allow the Department of Corrections and Rehabilitation (the Department) to house male prisoners under a sentence of death in any California prison that the Department finds will “provide a level of security sufficient for that inmate. The inmate shall be returned to the prison
d esignated for execution of the death penalty after an execution date has been7

set. ” 6 The Department must “maintain at all times the ability to execute” a judgment of death. ( § 3604, subd. (e).) Section 3604.1 provides an exemption from the Administrativ e Procedure Act (Gov. Code, § 11340 et seq.) for “standards, procedures, or regulations” governing administration of the death penalty. ( § 3604.1, subd. (a).) It also permits execution by lethal injection to be carried out by means other than
intravenous , “if the warden determines that the condition of the inmate makes intravenous injection impractical.” ( § 3604.1, subd. (b).) The sentencing court is given exclusive jurisdiction over challenges to the method of execution. Such
claims must be dismissed if delayed without good cause. If the method is found invalid, the court is to order the use of a valid method. If a federal court enjoins use of a method of execution, the Department must, within 90 days, adopt a method conforming to federal requirement s. ( § 3604.1, subd. (c).) Section 3604.3, subdivision (a) authorizes physicians to attend executions for the purposes of pronouncing death and assisting the Department in developing protocols. Physicians and other licensed health care professionals are protected against disciplinary proceedings for any actions authorized by statute. ( § 3604.3, subd. (c).) The purchase of medical supplies and equipment used in executions is exempted from the provisions of the Pharmacy Law (Bus. & Prof. Code, § 4000 et

s eq.). ( § 3604.3, subd. (b).)
C. T he Habeas Corpus Resource Center The Habeas Corpus Resource Center provides counsel, investigative staff, and experts for prisoners in capital habeas corpus proceedings. Currently the center is governed by a five

- member board of directors chosen by the Appellate

6 Female prisoners sentenced to death are housed in t he Central California Women’s Facility in Chowchilla

.8

Projects. 7 The board appoints an executive director, who is confirmed by the California Senate. (Gov. Code, former § 68664.) Proposition 66 modifies the governance of the center “ to expedite the completion of state habeas corpus proceedings in capital cases, and to provide quality representation in state habeas corpus for inmates sentenced to death. ” (Gov. Code, § 68660.5.) The initiative measure abolishes the center’s board of directors, and
authorizes this court to appoint its executive director. (Gov. Code, § 68664, subd. (b).) Salaries for the executive director and the center’s attorneys are set at the levels of comparable positions at the office of the State Public Defender. (Gov. Code, § 68664, subd. (e).) Government Code section 68661, subdivisions (g) and (h) are amended to specify that the center’s role is limited to habeas corpus representation. It may not engage in other litigation or expend funds on any other form of advocacy. (Gov. Code, § 6 8661.1, subd. (b).) Government Code section 68661, subdivision ( l ) is amended to require that the center’s annual report list all cases in which it is providing representation. In cases that have been pending for more than a year, the center must state r easons for the delay and identify remedial actions. Government Code section 68661.1, subdivision (a) imposes limits on the center’s representation in federal habeas corpus proceedings.
II. DISCUSSION
We consider only the objections raised by the amended and renewed petition before us . “We have no occasion at this time to consider other possible attacks,” and “except as necessary to resolve the basic questions before us, we do

7 The Appellate Projects were established to fulfill the responsibility of each District Court of Appeal to “adopt procedures for appointing appel late counsel for indigents not represented by the State Public Defender in all cases in which indigents are entitled to appointed counsel.” (Cal. Rules of Court, rule 8.300(a)(1).)9

not consider in this case possible interpretive or analytical problems” that m ight
arise from the measure in the future . ( Raven v. Deukmejian , supra , 52 Cal.3d at
p p . 3 40

- 3 41.) We review here a facial challenge to the constitutionality of Proposition 66 , and express no view on claims that may be presented by individual prisoners b ased on their own circumstances. We are guided by policies this court has consistently followed in cases challenging the validity of initiative measures. “ ‘[T]he Constitution’ s initiative and referendum provisions should be liberally construed to mainta in maximum power in the people. ’ ” ( Independent Energy Producers Assn. v. McPherson (2006) 38 Cal.4th 1020, 1032, quoting Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675; see also Carlson v. Cory (1983) 139 Cal.App. 3d 724, 728 .)
Under article IV, sec tion 1 of the Cal ifornia Const itution, “ [t] he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powe rs of initiative and
referendum. ” “The initiative is the power of the electors to propose statutes and
amendments to the Constitut ion and to adopt or reject them. ” ( I d ., ar t. II, § 8,
subd

. (a) .) We have declared it “ our solemn duty to jealously guard the precious initiative power, and to resolve any r easonable doubts in favor of its exercise. ” ( Legislature v. Eu , supra , 54 Cal.3d at p. 501.)

“ ‘ We do not consider or weigh the economic or social wisdom or general propriety of the initiative. Rather, our sole function is to evaluate [it] legally in th e light of established constitutional standards. ’ ” ( Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 814, quoting Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization , supra , 22 Cal.3d at p. 219 , and citing Ferguson v. Skrupa (1963) 372 U.S. 726, 730 ; see Brown v. Superior Court (2016) 63 Cal.4th 335, 352, fn. 11 .) “ ‘ [A ]ll presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration10

of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. ’ [Citations.] If the validity of the measure
is ‘ fairly debatable, ’ it must be sustained. [Citations.]” ( Calfarm , at pp. 814

- 815.) With these principles in mind, we turn to petitioner’s challenges.
A. The Single

- s ubject C laim

“ A n initiative measure embracing more than one subject may not be submitted to the electors or have any effect

. ” (Cal. Const. , art. II, § 8, subd. (d).) Our jurisprudence in this ar ea is well developed. “[W] e have upheld a variety of initiative measures in the face of a single

- subject challenge, emphasizing that the initiative process occupies an important and favored status in the California constitutional scheme and that the singl e

- subject requirement should not be interpreted in an unduly narrow or restrictive fashion that would preclude the use of the initiative process to accomplish comprehensive, broad

- based reform in a particular area of public concern. (See, e.g., Fair Polit ical Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 41 [upholding 1974 Polit ical Reform Act (Proposition 9) ]; Brosnahan , supra , 32 Cal.3d 236, 245

– 253 [upholding the
Victims ’ Bill of Rights (Proposition 8) ]; Raven v. Deukmejian , supra , 52 Cal.3d
336 , 346

– 349 [upholding Crime Victims Justi ce Reform Act (Proposition 115) ]; Legislature v. Eu , supra , 54 Cal.3d 492, 512

– 514 [upholding the Political Reform Act of 1990 (Proposition 140) ].) ” ( Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157 .) “[T] he single

- subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose.” ( Legislature v. Eu , supra , 54 Cal.3d at p. 513.) Accordingly, we have upheld initiative measures “ ‘ which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common11

purpose

. ’ [Citation.] ” ( Id . at p. 512; accord, Senate of the State of Cal. v. Jones , supra , 21 Cal.4th at p. 1157 .) The governing principle is that “ ‘ “[a] n initiative measure does not violate the single

- subject requirement if, despite its varied collateral effects, all of its parts are ‘ reasonably germane ’ to each other, ” and to the general purpose or object of the initiative. [Citations.]’ ” ( Legislature v. Eu , at
p. 512.) The “reasonably germane” standard is applied “in an accommodating and lenient manner so as not to unduly res trict

. . . the people’s right to package provisions in a single bill or initiative.” ( Californians for an Open Primary v.
McPherson (2006) 38 Cal.4th 735, 764 ; cf. Brown v. Superior Court , supra , 63 Cal.4th at pp. 349

- 351.) A review of other comprehen sive criminal justice reforms enacted by initiative, and upheld against single

- subject challenges, demonstrates that Proposition 66 passes the “reasonably germane” test. The “Victims’ Bill of Rights” at issue in Brosnahan , supra , 32 Cal.3d 236 , included p rovisions providing for (1) restitution to crime victims; (2) an inalienable right to safe public schools; (3) a sweeping restriction on judicially created rules of evidentiary exclusion; (4) new limitations on grants of bail; (5) the use of prior felony

c onvictions for impeachment purposes; (6) abolishment of the diminished capacity
defense and reinstatement of the M’Naghten test for legal insanity ; 8 (7) sentence enhancements for habitual criminals; (8) victim participation in sentencing proceedings; (9) p lea bargain restrictions; and (10) limitations on commitments to the California Youth Authority (now the Division of Juvenile Justice). ( Brosnahan , at pp. 242

- 245.)

8 M’Naghten’s Case (1843) 8 Eng.Rep. 718, 722 ; see People v. Skinner (198 5) 39 Cal.3d 765, 768.12

The Brosnahan court found it “readily apparent” that these provisions
shared “ a common co ncern, ‘ general object ’ or ‘ general subject, ’ promoting the rights of act ual or potential crime victims.

. . . [T] he 10 sections were designed to strengthen procedural and substantive safeguards for victims in our criminal justice system. These changes we re aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victim s, namely school pupils and staff, and assuring restitution for the victims of criminal acts. ” ( Brosnahan , supra , 32
Cal.3d at p. 247.)
In Raven v. Deukmejian , supra , 52 Cal.3d 336 ( Raven ) , the court examined the “Crime Victims Justice Reform Act,” which provided for (1) postindictment preliminary hearings; (2) restricting certain state constitutional criminal rights to afford no greater protection than is provided by the federal Constitution; (3) the people’s right to due process and a speedy public tria l; (4) greater flexibility with regard to joinder and less with regard to severance; (5) admissibility of hearsay at preliminary hearings; (6) reciprocal discovery in criminal cases and related measures relating to preliminary examinations; (7) reformation of the voir dire process; (8) additional felonies in the felony

- murder statute; (9) special circumstance reforms; (10) new provisions governing the crime of torture; (11) appointment of counsel willing and able to proceed in a timely manner in felony

case s; and (12) a requirement that felony cases be set for trial within 60 days of arraignment absent good cause for an extension, with writ review of such determinations. ( Id . at pp. 342

- 345.) The Raven court found Brosnahan controlling. It held that “ the various elements ” of the measure before it “ unite [d] to form a comprehensive criminal justice reform package ,” with “ the single13

subject ” being “ promotion of the rights of actual and potential crime victims .” ( Raven , at p. 347) 9 Manduley v. Superior Cour t (2002) 27 Cal.4th 537 ( Manduley ) involved the “ Gang Violence and Juvenile Crime Prevention Act of 1998 .” That initiative measure included 13 provisions relating to criminal gang activity, four provisions amending the Three Strikes law, and 17 provisions amending Welfare and Institutions Code sections pertaining to the juvenile justice system. The Manduley court observed that the “ general object of the initiative is to address the problem of violent crime committed by juveniles and gangs

— not simply to reduce crime generally .” ( Id . at pp. 575

- 576.) It noted that broader criminal justice reforms were upheld against single

- subject challenges in Raven and Brosnahan . ( Id . at p. 576.) Although the Three Strikes reforms in Manduley “ at first blush, might n ot bear an obvious relationship to juvenile or gang offenders, ” the court decided

“ upon closer scrutiny we cannot properly conclude that they are not reasonably related to the goal of the initiative. ” ( Manduley , supra , 27 Cal.4th at p. 577.)

“ Even if som e of the crimes added to the list of violent and serious felonies are more likely to be committed by an adult who is not a gang member, the offenses nonetheless constitute crimes that commonly are committed by members of street gangs and/or juvenile offend ers and thus bear a reasonable and commonsense relationship to the purpose of the initiative. ” ( Id . at p. 578.) “ Thus, despite the collateral effects of these provisions upon adults who are not gang members, and

9 Though it found no violation of the single

- subject requirement, the Raven court struck down the provision restricting judicial interpretation of the state Constitution as an impermissible constitutional revision. ( Raven , supra , 52 Cal.3d at p. 355.)14

despite the circumstance that [one provisi on] has the incidental effect of adding strikes that the Legislature previously had [not] included in the list of violent and serious felonies, the provisions remain relevant to the common purpose of ” the measure. ( Id . at pp. 578

- 579.) Proposition 66 is more focused on a single subject than the initiative measures upheld in Brosnahan , Raven , and Manduley . Petitioner posits that Proposition 66 is intended to expedite review in capital cases, and contends four provisions are unrelated to that purpose: (1) the requirement that prisoners work and pay restitution ( § 2700.1); (2) the exemption of execution protocols from the Administrative Procedure Act ( § 3604.1, subd. (a)); (3) the protections provided to licensed medical professionals involved in executions ( § 3604.3, subd. (c)); and (4) the abolishment of the Habeas Corpus Resource Center’s board of directors (Gov. Code, § 68664, subd. (b)). Petitioner frames the purpose of Proposition 66 too narrowly. It is not solely concerned with the process of review ing capital judgments. As the findings and declarations prefacing the measure make clear, it was intended as an extensive reform of the entire system of capital punishment to make it more efficient, less expensive, and more responsive to the rights of
vic tims. (Voter Guide, supra , p. 212.) With that purpose in mind, it is readily apparent that the provisions identified by petitioner are reasonably germane to the

“ comprehensive criminal justice reform ” approved by the voters. ( Raven , supra , 52 Cal.3d at p. 347.) Restitution is a significant aspect of a criminal sentence and a benefit to victims. (See § 1202.4; People v. Dehle (2008) 166 Cal.App.4th 1380, 1386.) “Imprisonment pending execution of a death sentence is a part of the punishment
for the crim e” ( People v. Rittger (1961) 55 Cal.2d 849, 852), and work requirements are a normal feature of imprisonment ( § 2700). The exemption from the Administration Procedure Act removes procedural impediments to execution15

protocols that are evident in published cases. (See Sims v. Department of
Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1083

- 1084 ; Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729, 732.) Allowing medical professionals to participate in executio ns without fear of disciplinary action by licensing authorities is reasonably calculated to facilitate the process of capital punishment. Placing the attorneys who work for the Habeas Corpus Resource Center under the supervision of this court, instead of an independent board of directors, is related to the goal of improving the efficiency of
their efforts. Even under petitioner ’ s constricted v iew of Proposition 66’s
purpose, the Habeas Corpus Resource Center reforms would qualify as reasonably
germane, gi ven that the center i s directly involved in the post conviction review
process. B. The Jurisdictional Habeas Corpus Claims Petitioner’s jurisdictional challenges to Proposition 66’s habeas corpus
reforms are based on article VI, sections 10 and 11 of the California
Constitution. 10 Section 10 of article VI governs writ jurisdiction, including habeas corpus. It confers original habeas corpus jurisdiction on all three levels of the judicial system: “T he Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings. ” (Art. VI, § 10.) Article VI, section 11 governs appellate jurisdiction. Generally, the courts of appeal have jurisdiction over appeals when the superior courts have original jurisdic tion, with one exception: “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced.” (Art. VI, § 11, subd. (a).) These provisions deal with jurisdiction in its most fundamental sense: the power of a

10 Undesignated references to article VI, sections 10 and 11 are to the state Constitution.16

court to hear and de cide a case. (See 2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction , § 1, p. 575.) Sections 10 and 11 of article VI are divergent in effect. This court has
exclusive appellate jurisdiction in capital cases under section 11. But original habeas corpu s jurisdiction , even in capital cases, is shared by all the state courts under article VI, section 10. (See In re Carpenter (1995) 9 Cal.4th 634, 645

- 646.) As we have noted, the existing practice in California has been that initial habeas corpus petition s in capital cases are filed with this court. That, however, is not a jurisdiction al requirement. Article VI, section 10 confers jurisdiction on the superior courts and courts of appeal to entertain such petitions as well.
Petitioner contends Propositio n 66 violates article VI, section 10 by (1) requiring initial habeas corpus petitions to be transferred to the sentencing court, absent good cause for another court to hear them ( § 1509); (2) conferring “exclusive jurisdiction” on the sentencing court over challenges to the method of execution ( § 3604.1, subd. (c)); and (3) specifying that successive petitions may not be used as a means of reviewing a denial of habeas corpus relief ( § 1509.1, subd. (a)). Petitioner also argues that section § 1509.1, subdiv ision (a) deprives this court of its exclusive appellate jurisdiction in capital cases under article VI, section 11, by requiring appeals in habeas corpus cases to be taken to the courts of appeal. All these claims fail.
1. Transfer to the Sentencing Co urt In challenging section 1509’s provisions for the transfer of habeas corpus petitions to the sentencing court, petitioner urges a strict reading of article VI, section 10. He claims the procedural limitations in section 1509, subdivision (a)
are incon sistent with the constitutional grant of original habeas corpus jurisdiction17

to all state courts. 11 As to matters of procedure, however, the framers of our state Constitution left considerable leeway for legislative prescription of habeas corpus procedures . Article VI, section 10 was drafted in 1966, when California comprehensively revised its Constitution to “rephrase” existing provisions “in more modern, concise language and if necessary to organize [them] in a more logical framework.” ( Cal

. Const

. Rev i sion Com

. , Proposed Revision (1966), p . 13 (Commission Report).) Article VI, which governs the judicial branch, was modified to “remov[e] obsolete language, delet[e] unnecessary procedural provisions, and introduc[e] the constitutional flexibility needed to permit a modern and efficient administration of California’s judicial system.” ( Judicial Council of Cal., Ann. Rep. (1 967 ) pt. 1, c h. 3, p. 65 (Council Report).) With respect to section 10 of article VI, the California Constitution
Revision Commission explained that former provisions “ concerning the issuance and returnability of writs of habeas corpus ” had been deleted “ because the matter can be dealt with by the Legislature under the grant of original jurisdiction

. ” ( C ommission Report, supra , at p. 9 0, italics added; quoted in Griggs v. Superior
Court (1976) 16 Cal.3d 341, 34 9 (conc. & dis. opn. of McComb, J.) .) The Judicial Council, in its report on the revisions, similarly explained that “[t] he procedure for the exercise of this original [writ] jur isdiction is left to promulgation by statutes
and rules , ” while also noting that “ the authority of the named courts to issue writs of habeas corpus is specifically preserved

. . . .” ( Council Report, supra , p t. 1, c h.

11 “ This section applies to any petition for writ of habeas corpus filed by a person in custody pursuant to a judgment of death.

. . . A petitio n filed in any court other than the court which imposed the sentence should be promptly transferred to that court unless good cause is shown for the petition to be heard by another court. A petition filed in or transferred to the court which imposed the s entence shall be assigned to the original trial judge unless that judge is unavailable or there is other good cause to assign the case to a different judge. ” ( § 1509, subd. (a).)18

3, p. 75 , italics added; quoted in Gr iggs , supra , 16 Cal.3d at pp. 34 9

- 350 (conc. & dis. opn. of McComb, J.) .) We have recognized that “[b] y removing ‘unnecessary’ provisions from
article V I , and allowing those matters to be regulated by statute, the commission’s
revisions of article VI effe ctively broadened the scope of the Legislature’s control over judicial procedures.” ( Powers v. City of Richmond (1995) 10 Cal.4th 85, 94 (plur. opn. of Kennard, J.); see Leone v. Medical Board (2000) 22 Cal.4th 660, 667.) Thus, the provisions of article VI, section 10 do not tightly constrain the scope of procedural legislation, although a statute may not substantially impair the courts’ original writ jurisdiction. ( Powers , at p. 110; Leone , at p. 668.) A chapter
of the Penal Code is devoted to habeas c orpus procedures, which coexist with judicially developed rules. ( § 1473 et seq.; see In re Roberts (2005) 36 Cal.4th 575, 582 ( Roberts ).) The power of the people to enact procedural reforms by way of initiative measure is no less than that of the Legisl ature. ( Legislature v. Deukmejian , supra , 34 Cal.3d at p. 674.) Contrary to petitioner’s argument, section 1509 actually preserve s the original writ jurisdiction of all three levels of the state courts, by providing that “[a] petition filed in any court other than the court which imposed the sentence
should be promptly transferred to that court unless good cause is shown for the petition to be heard by another court .” ( § 1509, subd. (a), italics added.) A petition filed in another court is not dismissed , as it would be if jurisdiction were absent. Instead, section 1509 provides for the transfer of a petition to the sentencing court. As a matter of judicial policy, we have adopted the same rule for habeas corpus petitions challenging parole determinatio ns. “[A] mong the three levels of state courts, a habeas corpus petition challenging a decision of the parole
board should be filed in the superior court, which should entertain in the first instance the petition.” ( Roberts , supra , 36 Cal.4th at p. 593, i talics added.)19

Like section 1509, Roberts calls for petitions filed elsewhere to be transferred to the sentencing court. “[W] hen a habeas corpus petition challenging the denial of parole or suitability for parole is filed in the superior court in a

count y other than that in which the petitioner’s conviction and sentence were imposed, the filing court should transfer the petition to the superior court in the county of commitment in the first instance, prior to any determination being made that the petition er has made a prima facie case. ” ( Roberts , supra , 36 Cal.4th at p. 593, italics added.) This rule does not deprive the appellate courts of their original writ jurisdiction, which they may exercise in appropriate circumstances. ( In re
Kler (2010) 188 Cal .App.4th 1399, 1403

- 1404.) Section 1509 essentially adopts the procedure developed in Roberts . It does not infringe on the jurisdiction conferred by article VI, section 10.
Petitioner further contends that Government Code section 68662
unconstitutionall y authorizes the superior courts to appoint counsel for prisoners in habeas corpus proceedings conducted under Penal Code section 1509. There is no constitutional infirmity here. Article VI, section 10 does not regulate such

matters. 12

12 Petitioner speculates that if it is the superior court that appoints coun sel in habeas corpus proceedings, prisoners would be left without representation in appellate court proceedings. This concern has no jurisdictional ramifications. Furthermore, as practical matter no indigent prisoner in a capital case goes without posttr ial representation in California. (See In re Sanders (1999) 21 Cal.4th 697, 717

- 718; In re Anderson (1968) 69 Cal.2d 613, 633.) Whether such duties are undertaken by counsel appointed by the superior court, by this court, or perhaps by one of the appella te projects, is a matter that can be addressed by the rules and standards of administration contemplated by section 190.6, subdivision (d).20

2. Jurisdiction o ver Challenges to Execution Methods Section 3604.1, subdivision (c) confers on the sentencing court “ exclusive jurisdiction to hear any claim by the condemned inmate that the method of
execution is unconstitutional or otherwise invalid .” Petitioner con tends this provision unconstitutionally strips the courts of appeal and this court of the original habeas corpus jurisdiction granted by article VI, section 10. Proponents
defend the statute by arguing that challenges to execution methods are not
ordinari ly brought in habeas corpus proceedings, but in civil suits that do not implicate the jurisdictional provisions of article VI, section 10. (E.g., Glossip v.
Gross (2015) __ U.S. __ [135 S.Ct. 2726]; Morales v. California Dept. of
Corrections & Rehabilitat ion , supra , 168 Cal.App.4th 729; Sims v. Department of
Corrections & Rehabilitation , supra , 216 Cal.App.4th 1059.) They acknowledge, however, that exceptions may be found recognizing the availability of habeas corpus relief with respect to methods of exec ution. (See Hill v. McDonough (2006) 547 U.S. 573, 583; In re Reno (2012) 55 Cal.4th 428, 462, fn. 17; In re
Anderson (1968) 69 Cal.2d 613, 631

- 632.) Unlike section 1509, which preserves the original jurisdiction of the appellate courts, section 3604.1, subdivision (c) makes no provision for exceptions in extraordinary circumstances. Nevertheless, it does not explicitly interfere with the reviewing courts’ jurisdiction. The jurisdiction conferred by our Constitution “may not lightly be deemed to have be en destroyed.” ( Garrison v. Rourke (1948) 32 Cal.2d 430, 435.) An intent to divest a court of jurisdiction “is not read into the statute unless that result is expressly provided or otherwise clearly intended.” ( Ibid .) We avoid conflicts between statute s and constitutional grants of jurisdiction whenever possible, by “construing legislative enactments strictly against the impairment of constitutional jurisdiction.” ( California Redevelopment
Assn. v. Matosantos (2011) 53 Cal.4th 231, 253.)21

Here we read section 3604.1, subdivision (c) narrowly, as addressing only the appropriate superior court in which to challenge the method of execution. Under section 1509, subdivision (a), a habeas corpus petition filed in a court other than the sentencing court must be transferred to the sentencing court unless there is good cause for another court to hear it. S ection 3604.1, subdivision (c) modifies this procedure in one respect: it precludes the transfer of habeas corpus claims regarding execution methods to a sup erior court other than the sentencing court. As so interpreted, the statute does not prevent a court of appeal or this court from hearing a habeas corpus challenge to a method of execution, upon a showing of good cause. As discussed next, section 1509.1 , subdivision (a) grants the courts of appeal jurisdiction to review superior court habeas corpus rulings

. We note that neither petitioner nor proponents argue that section 3604.1, subdivision (c) bars the courts of appeal from reviewing rulings on executi on methods . The existence of such appellate jurisdiction lends support to the conclusion that the exclusive jurisdiction provisions of section 3604.1, subdivision (c) are intended to apply only at the superior court level. 13
3. Appellate Review
Section 1509.1, subdivision (a) states: “ Either party may appeal the decision of a superior court on an initial petition under Section 15 09 to the court of appeal.

. . . A successive petition shall not be used as a means of reviewing a
denial of habeas relief. ” 14 These provisions are a significant departure from the

13 Petitioner makes no claim that section 3604.1, subdivision (c) infringes on the jurisdiction of superior courts o ther than the sentencing court. 14 S ection 1509.1, subdivision (a) ’s use of the term “successive petition” is inconsistent with this court’s terminology. We have used the term “new petition” for habeas corpus petitions seeking review of a lower court’s ru ling. ( In re Clark
(Footnote continued on next page.)22

existing procedure that would govern a capital habeas corpus petition filed in superior court. A petitioner currently has no right to appeal from a superior court denial of habeas corpus relief. Ins tead, review is obtain ed by filing a new habeas
corpus petition in a higher court

. ( Clark , supra , 5 Cal.4th at p. 767, fn. 7 ; Reed , supra , 33 Cal.3d at p. 918, fn. 2.) The People, on the other hand, have a statutory right to appeal from a superior court’ s grant of relief on habeas corpus. Section 1506 provides: “ An appeal may be taken to the court of appeal by the [P] eople from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant or otherwise granting all or any part of the relief sought, in all criminal cases, excepting criminal cases where judgment of death has been rendered, and in such cases to the Supreme Court

. ” (Italics added.) Petitioner contends the provision of section 1509.1, subdivision ( a) that requires appeals to be taken to the courts of appeal interferes with this court’s exclusive appellate jurisdiction in capital cases under article VI, section 11. He claims the provision barring the use of successive petitions for purposes of revie w violates the original writ jurisdiction of the courts of appeal under article VI, section 10. Thus, petitioner asserts that the courts of appeal cannot exercise appellate jurisdiction in capital habeas corpus proceedings, while also contending they cann ot be deprived of their power of review by way of writ

. There is some support for the claim that our exclusive jurisdiction under article VI, section 11 extends to habeas corpus proceedings. The provisions of

(Footnote continued from previous page.) (1993) 5 Cal.4th 750, 767, fn. 7 ( Clark ) ; In re Reed , supra , 33 Cal.3d at p. 918, fn. 2 ( Reed ).) We have used “successive petition” to refer to one raising claims that could have been presented in a previous petition. (See In re Robbi ns (1998) 18 Cal.4th 770, 788, fn. 9; Clark , at pp. 76 9

- 770 .)23

section 1506 appear to presume that it does, by specifying that appeals from a grant of habeas corpus relief must be taken to this court in “criminal cases where judgment of death has been rendered.” The same presumption was expressed, in dicta, by In re Ketchel (1968) 68 Cal.2d 397. The Ketchel c ourt noted that an appeal from a habeas corpus ruling in favor of a capital prisoner was taken “pursuant to article VI, section 11 .

. . and .

. . section 1506.” ( Id . at p. 399.) Nevertheless, upon closer examination we are persuaded that article VI, sec tion 11
does not preclude statutory authorization for the courts of appeal to exercise appellate jurisdiction in capital habeas corpus proceedings. As explained below, appellate review of habeas corpus rulings is distinct from review of the underlying jud gment of death. We examined the extent of our exclusive jurisdiction in Thompson v. Department of Corrections (2001) 25 Cal.4th 117 ( Thompson ). Thompson filed suit to compel prison authorities to allow his spiritual adviser to remain with him
until short ly before his execution. The superior court issued an injunction. The court of appeal dismissed the authorities’ appeal on the ground that the matter was within this court’s exclusive jurisdiction under article VI, section 11. ( Thompson , at p. 121.) We disagreed. Reviewing the relevant constitutional history, we noted that all predecessor provisions had specified that our exclusive appellate jurisdiction was limited to “ ‘ criminal cases where judgment of death has been rendered.’ ” ( Id . at p. 123; see Cal. Const., former art. VI, § 4, as amended Nov. 8,
1904 ; id ., as amended Nov. 5, 1918 ; id ., as amended Nov. 6 , 19 2 8 .) In the 1966 constitutional revision, the reference to “criminal cases” was deleted when the exclusive jurisdiction provision was trans ferred to article VI, section 11

. However, we found nothing in the history of the 1966 revision indicating “ an intent to alter the scope of our exclusive jurisdiction over capital cases.” ( Thompson , at p. 124.)24

“ As a result, this court ’ s exclusive death penalty jurisdiction, as currently described in section 11 of article VI, is the same as it was in section 4 of former article VI, applying only to criminal cases in which a judgment of death has been
rendered. ” ( Thompson , supra , 25 Cal.4th at p. 124.) Because Thompson was “ not a criminal case, ” but rather a civil suit for declaratory and injunctive relief, we
concluded “ the appeal [ d id] not fall within this court’ s exclusive jurisdiction. ” ( Ibid .) Thompson ’s description of our exclusive jurisdiction a s limited to the criminal case in which judgment was rendered is consistent with the understanding expressed by the Judicial Council in its report on the 1966 constitutional revision
that framed article VI. “Under Section 11, the direct appellate jurisdic tion of the Supreme Court is restricted to those cases in which judgment of death has been pronounced.” ( Council Report., supra , p t. 1, c h. 3, p. 7 6.) In a number of decisions, we have made it plain that a habeas corpus proceeding is not a part of
the cr iminal case in which the judgment of conviction is pronounced. Therefore, our exclusive jurisdiction does not extend to habeas corpus proceedings.
In re Scott (2003) 29 Cal.4th 783 ( Scott ), was a capital habeas corpus case
in which we issued an order to show cause and appointed a referee to take evidence on claims of ineffective assistance of counsel. ( Id . at pp. 791

- 792.) At the evidentiary hearing, Scott invoked his constitutional and statutory rights not to
be called as a witness in a criminal case. (Cal. Const., art. I, § 15; Evid. Code, §
930 .) We rejected the attempt, holding that a habeas corpus proceeding is “civil in nature” for purposes of the privileges at issue. 15 ( Scott , at p. 815.) The

15 W e refrained in Scott from deciding “whether a habeas corpus proceeding is civil or criminal for other purposes , ” noting that “[i]t is a special proceeding and not entirely analogous to eithe r category.” ( Scott , supra , 29 Cal.4th at p. 815, fn. 6. )25

proceeding “ is not itself a criminal case, and it ca nnot result in added punishment for the petitioner. Rather, it is an independent action the defendant in the earlier criminal case institutes to challenge the results of that case. ” ( Ibid .) In support of that principle, Scott cited France v. Superior Co urt (1927) 201 Cal. 122, 126

- 127, where the court declared that “[t] he writ of habeas corpus , . . . although granted to inquire into the legality of one imprisoned in a criminal prosecution is not a proceeding in that prosecution, but, on the contrary, is an independent action instituted by the applicant therein to secure his discharge from such imprisonment .”
I n re Barnett (2003) 31 Cal.4th 466 ( Barnett ) considered whether prisoners sentenced to death, and represented by counsel, are entitled to submit pro se claims related to their habeas corpus petitions. We noted that no such right pertains on appeal when the defendant has an attorney, and emphasized that “ an inmate’s rights regarding legal representation in a state habeas corpus proceeding

are even more limited than on an appeal. ” ( Id . at p. 474.) Habeas corpus relief is

“ ‘ further removed from the criminal trial than is [appellate] review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature .’ ” ( I bid ., fn. omitted, quoting Pennsylvania v. Finley (1987) 481 U.S. 551, 556

– 557 , and citing Scott , supra , 29 Cal.4th at p. 815 .)
In People v. Superior Court ( Pearson ) (2010) 48 Cal.4th 564, we construed section 1054.9’s provisions governing discovery in ha beas corpus proceedings brought by prisoners sentenced to death or life without parole. The People argued that section 1054.9 was an unconstitutional attempt by the Legislature to amend Proposition 115, which regulates discovery in criminal cases. 16 We fr amed the

16 “ The Legislature may not amend an initiative statute without subsequent voter approval unless the initiative permits such amendment, ‘ and then only upon
(Footnote continued on next page.)26

issue as “ whether discovery to prosecute (or prepare) a habeas corpus matter
comes within a ‘ criminal case[] ’ under section 1054.5 ,” a provision of Proposition
115

. ( Pearson , at p. 572.) We decided it did not, because “[a] habeas corpus
matter h as long been considered a separate matter from the criminal case itself. ” ( Ibid .) Pearson referred to In re Carpenter , supra , 9 Cal.4th at pp. 645

– 646 , which held that the superior court had jurisdiction over a habeas corpus petition challenging the judg ment in the underlying criminal case, even though it lacked jurisdiction in the criminal case because it was on appeal. The holding in Pearson turned on the independent nature of habeas corpus proceedings. “Although section 1054.9 ’s discovery may occur b efore the actual habeas corpus petition is filed, it is part of the prosecution of the habeas corpus matter, not part of the underlying criminal case. [ ¶ ] Proposition 115’s discovery provisions all deal with the underlying trial. For this reason, we hav e held that they do not apply to habeas corpus matters (although they may provide guidance in crafting discovery orders on habeas corpus). ( [ Scott , supra ,] 29 Cal.4th 783,
813

– 814.) ” ( Pearson , supra , 48 Cal.4th at p. 572.) 17

(Footnote continued from previous page.)
whatever conditions the voters attached t o the Legislature’s amendatory powers. ’ ” ( Pearson , supra , 48 Cal.4th at p. 568.) 17 In one limited circumstance, a habeas corpus proceeding is seen as an extension of the underlying criminal action. If it is assigned to the same judge who presided at tr ial, it is deemed a “ continuation ” of the trial so that the parties are barred from exercising a peremptory challenge under Code of Civil Procedure section 170.6. ( Maas v. Superior Court (2016) 1 Cal.5th 962, 979.) The reason for this rule, which applies in any subsequent proceeding closely related to the original case, i s to prevent litigant s from disqualifying the judge most familiar with the facts in the hope of obtaining a more favorable result. ( Ibid .) The rule is confined to its context, however, and does not alter the fundamental character of
(Footnote continued on next page.)27

Scott , Barnett , and Pearson m ake it clear that regardless of whether habeas corpus proceedings are deemed civil or criminal in nature (compare Scott , supra , 29 Cal.4th at p. 815, fn. 6, with Barnett , supra , 31 Cal.4th at p. 474), they are separate actions. Accordingly, they are not c ases “in which a judgment of death has been rendered,” and do not come within our exclusive jurisdiction under article VI, section 11. ( Thompson , supra , 25 Cal.4th at p. 124.) This conclusion harmonizes the appellate jurisdiction provisions in section 11 of article VI with the writ jurisdiction provisions of section 10, which include no limitation applicable to capital cases. As we have explained, there would be no constitutional impediment to a court of appeal exercising its original jurisdiction over a habeas corpus petition seeking review of a superior court denial of relief in a capital case. (See
Clark , supra , 5 Cal.4th at p. 767, fn. 7 .) It would be anomalous if this court had
exclusive jurisdiction to review habeas corpus rulings on appeal in cap ital cases,
but shared jurisdiction with the courts of appeal over habeas corpus petitions filed for the same purpose of reviewing a superior court ruling. 18 For these reasons, section 1509.1, subdivision (a) does not violate the state Constitution by gran ting appellate jurisdiction to the courts of appeal in capital habeas corpus proceedings. As petitioner points out, however, it does conflict

(Footnote continued from previous page.) the habeas corpus proceeding as “an independent, collateral challenge to an earlier, completed criminal prosecution .” ( Id . at p. 975.) 18 In In re Steele (2004) 32 Cal.4th 682, we recognized the courts of ap peals’ writ jurisdiction to review trial court decisions in capital habeas corpus proceedings. We held that rulings on discovery motions under section 1054.9 are reviewable “by a petition for writ of mandate in the Court of Appeal.” ( Steele , at p. 692; s ee art. VI, § 10 [granting original jurisdiction to all three court levels in mandamus proceedings as well as habeas corpus proceedings].)28

with section 1506, which requires the People to appeal directly to this court if they wish to challenge a grant o f relief to a capital habeas petitioner. Proposition 66 does not expressly repeal this provision of section 1506, but an implied repeal is plainly effected. Although there is a presumption against repeals by implication, “[w] hen a later statute enacted b y initiative is inconsistent and cannot operate concurrently with an earlier statute enacted by the Legislature, the later statute prevails. ” ( Burlington N

orthern & Santa Fe Ry. Co. v. Public Utilities
Commission (2003) 112 Cal.App. 4th 881, 890; see Profe ssional Engineers in California Government v. Kempton (2007) 40 Cal. 4th 1016 , 1038 ( Professional Engineers ).) The provision of section 1509.1, subdivision (a) allowing “[e] ither party [to] appeal the decision of a superior court on an initial petition

. . . to the court of appeal” cannot operate concurrently with the provision of section 1506 requiring a People’s appeal to be taken to this court in a capital habeas corpus proceeding. Proposition 66 was manifestly intended to occupy the field of habeas cor pus review of superior court rulings in capital cases. (See Professional Engineers , supra , 40 Cal. 4th at p. 1038.) The terms of section 1509.1, subdivision (a)

“ demonstrate a clear intent by the electorate to supersede prior law ,” displacing the provisio ns of section 1506 governing People’s appeals from superior court rulings. ( Professional Engineers , at p. 1039.) 19

19 Section 1506 also provides that “ in all criminal cases where an application for a writ of habeas corpus has been h eard and determined in a court of appeal, either the defendant or the [P]eople may apply for a hearing in the Supreme Court.” Should a court of appeal determine that good cause exists under section 1509, subdivision (a) for it to hear a capital habeas cor pus petition, this provision of section 1506 would be applicable. No provision of Proposition 66 addresses review in these circumstances.29

Petitioner further argues that section 1509.1, subdivision (a) is unconstitutional because it makes an appeal the exclusive means of reviewi ng a superior court habeas corpus ruling. The statute declares that “[a] successive petition shall not be used as a means of revi ewing a denial of habeas relief,” abolishing the existing practice under which review may be obtained by filing a new petition in a higher court. ( § 1509.1, subd. (a).) Petitioner claims this restriction infringes on the original habeas corpus jurisdiction of the appellate courts under article VI, section 10. We disagree. It is true that the former method of seeking review by filing a new petition was based on the appellate courts’ original habeas corpus jurisdiction. ( Reed , supra , 33 Cal.3d at p. 918, fn. 2 ; In re Michael E. (1975) 15 Cal.3d 183, 193, fn.
15. ) However, it does not follow that the discontinuation of that pra ctice violates article VI, section 10. Section 1509.1, subdivision (a)’s bar against renewed petitions in a higher court speaks not to jurisdiction, but to the use of habeas corpus for a particular purpose. Statutory restrictions on the subject matter of renewed petitions are an accepted means of combatting abusive practices. (See § 1475; Clark , supra , 5 Cal.4th at pp. 770

- 774.) The courts themselves have developed a number of “procedural bars” in an attempt to put reasonable limits on
collateral attack s by way of habeas corpus. ( Clark , at pp. 763

- 770.) These include a long

- established rule that habeas corpus may not be employed as a substitute for appeal, either by challenging claims rejected on an earlier appeal ( In re Waltreus (1965) 62 Cal.2d 218, 225), or by raising claims that could have been but were not raised on appeal ( In re Dixon (1953) 41 Cal.2d 756, 759). Under section 1509.1, subdivision (a), review of habeas corpus rulings is now available to petitioners on appeal. The statute’s bar on renewed petitions is a procedural one, limited in scope and similar in effect to the Waltreus and Dixon rules. It is a reasonable effort to avoid duplication, consistent with settled law that habeas corpus does not30

serve as a second appeal. ( In re Harris (1993) 5 Cal.4th 813, 825

- 827.) It does not prevent a court from exercising its writ jurisdiction, but merely provides it with another tool for disposing of repeated claims. Thus, section 1509.1, subdivision (a) does not violate article VI, section 10. We note that prisoners are free to challenge the restriction on grounds peculiar to
their own circumstances.
C. The Equal Protection Claim Petitioner argues that Proposition 66’s restrictions on successive habeas corpus petitions by prisoners sentenced to death violate the equal protection clauses of the state and federal Constitutions. Section 1509, subdivision (d) requires that “a successive petition whenever filed” be dismissed unless the court finds the prisoner actually innocent or ineligible for t he death penalty. This rule is a substantial revision of the policy established in Clark , supra , 5 Cal.4th 750.
Under Clark , successive petitions are permitted even “ absent justification for the failure to present all known claims in a single, timely pet i tion,” if the prisoner can
establish that a “

fundamental miscarriage of justice occurred.” ( I d . at p. 797.) 20 Nevertheless, petitioner’s equal protection claim stumbles at the threshold.

20 Clark explained that a “fundamental miscarriage of justice ” occurs when “ it can be demonstrated: (1) that error o f constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which the petitioner wa s convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the trial error or omission no reasonable judge or jury would have imposed a sentence of death ; (4) that the petitioner was convicted or sentenced under an invalid statute. ” ( Clark , supra , 5 Cal.4th at pp. 797

- 798 , fns. omitted .) Petitioner also relies on the provisions of section 1473 governing habeas corpus petitions based on claims of “false e vidence.” However, section 1473 does not mention successive petitions. While it may apply to such petitions, petitioner
(Footnote continued on next page.)31

“ ‘ Broadly stated, equal protection of the laws means “ that no per son or class of persons shall be denied the same protection of the laws [that] is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. ” [Citation.] ’ [Citation.] It does n ot mean, however, that ‘ “ things

. . . different in fact or opinion [must] be treated in law as though they were the same. ” [Citation.]’ [Citation.] ‘ [N]either the
Fourteenth Amendment of the Constitution of the United States nor the California
Constitut ion [citations] precludes classification by the Legislature or requires uniform operation of the law with respect to persons who are different. ’ [Citation.] Thus,

. . . a threshold requirement of any meritorious equal protection
claim ‘ is a showing that the state has adopted a classification that affects two or

more similarly situated groups in an unequal manner

. [Citation.] ’ [Citation.]

‘ This initial inquiry is not whether persons are similarly situated for all purposes,
but “ whether they are similarl y situated for [the particular] purposes of the law challenged. ” ’ ” ( People v. Guzman (2005) 35 Cal.4th 577, 591

- 592, italics added.) Petitioner argues that prisoners sentenced to death are situated similarly to noncapital prisoners because both groups have the same interest in freedom from an illegal or unjust conviction or sentence. Such a characterization of the interest at stake is overly broad. The question is whether capital and noncapital prisoners are similarly situated for purposes of section 1509’s restrictions on the filing of successive petitions. Proponents point out that in California only capital prisoners

(Footnote continued from previous page.) does not suggest it overrides the Clark limitations, or explain why section 1509 may not further limit false evidence claims in succes sive petitions consistently with equal protection principles.32

are guaranteed postconviction counsel and funds for investigation, and thus they are better able than noncapital prisoners to present a comprehensive initial habeas corpus petition. (See In re Reno , supra , 55 Cal.4th at pp. 456

- 457 ( Reno ).) The reason for these guarantees arises from considerations unique to the death penalty:

“ In a capital case, a detailed and comprehensive first st ate habeas corpus petition serves an important purpose, for courts can rest assured that, between the trial, the appeal, and the habeas corpus petition, the defense has had ample opportunity to raise all meritorious claims, the adversarial process has oper ated correctly, and both this court and society can be confident that, before a person is put to death, the judgment that he or she is guilty of the crimes and deserves the ultimate punishment is valid and supportable. ” ( Id . at p. 456, fn. omitted.)
Wit h respect to successive petitions, Reno set out the significant differences between capital and noncapital prisoners. We observed that the justification for a comprehensive first habeas corpus petition in a capital case “ all but disappears for

s econd and subsequent petitions in this court. Absent the unusual circumstance of some critical evidence that is truly ‘ newly discovered ’ under our law, or a change in the law, such successive petitions rarely raise an issue even remotely plausible,
let alone state a prima facie case for actual relief. In the 18 years since [] Clark , supra , 5 Cal.4th 750, experience has taught that in capital cases, petitioners frequently file second, third, and even fourth habeas corpus petitions raising nothing but procedurally ba rred claims. ” ( Reno , supra , 55 Cal.4th at pp. 457

- 458, fns. omitted.) Such abusive successive writ practices are not nearly so common in noncapital cases.
Reno noted that the prevalence of meritless successive writ petitions “ has
threatened to undermine the efficacy of the system for adjudicating petitions for collateral relief in cases involving the death penalty. ” ( Reno , supra , 55 Cal.4th at p. 442.) Accordingly, we “ establish [ed] some new ground rules for [successive]33

petitions in capital c ases that will speed this court’ s consideration of them without unfairly limiting petitioners from raising (and exhausting) justifiably new claims. ” ( Id . at p. 443.) We deemed these new rules necessary because abusive practices were a problem specific to capital cases . “ The abusive nature of the instant petition is by no means an isolated phenomenon. In those capital cases in which we have affirmed the judgment on appeal and then denied a typically lengthy first habeas corpus petition, we often

— years later

— r eceive [a successive] petition running several hundred pages long. Evaluation of the [successive] peti tion requires several weeks if not months of dedicated work by members of the court. As here, quite often the petition is nothing more than a repetition or reframing of past claims and unsubstantiated assertions of ineffective assistance of counsel. Rarely if at all does the petitioner justify his or her untimely presentation of
claims.

“ These practices, along with other factors, have created a signific ant threat to our capacity to timely and fairly adjudicate such matters. We are of course
aware that ‘ death row inmates have an incentive to delay assertion of habeas corpus claims that is not shared by other prisoners

. ’ ( [] Clark , supra , 5 Cal.4th at
p. 806 (conc. & dis. opn. of Kennard, J.); see Rhines v. Weber (2005) 544 U.S. 269, 277

– 278 [suggesting capital defendants ‘ might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of
death ’ ].) Yet tho se capital defendants whose appeals are fully briefed, and those habeas corpus petitioners whose briefing also is complete who may desire resolution, must sit and wait while we attend to these time

- consuming but generally meritless [successive] petitions. Some death row prisoner s with meritorious legal claims may languish in prison f or years waiting for this court’ s review while we evaluate petitions raising dozens or even hundreds of frivolous and untimely claims. We are not the only state court of last resort concerned that34

abusive [successive] petitions threaten the court ’ s ability to function. (See Commonwealth of Pennsylvania v. Spotz (2011) 610 Pa. 17, 171 (conc. opn. of Castille, C. J.) [estimating that the time required to evaluate an abusive post conviction petition in capital cases renders the Pa. Supreme Ct. ‘ unable to accept and review about five discretionary appeals ’ ].) ” ( Reno , supra , 55 Cal.4th at pp. 514

- 515, italics added.)
The new rules announced in Reno established page limits for succe ssive petitions in capital cases and permitted certain claims to be presented in abbreviated form. ( Reno , supra , 55 Cal.4th at pp. 515

- 516.) We also required counsel to clearly identify those claims that were earlier raised and rejected and in what proce edings, those claims that could have been raised earlier, those that were truly new, and those presented pursuant to federal court order requiring the exhaustion of state claims. ( I d . at p. 443.) We advised counsel that in the future, abusive writ practi ces could result in financial sanctions. ( I d . at p. 514.) We adopted these extraordinary measures to address issues peculiar to the successive petition process in capital cases. Section 1509 tackles the same problems. Our
exhaustive discussion in Reno explains how successive petitions in capital cases present special difficulties, and demonstrates that capital and noncapital petitioners are not similarly situated with respect to section 1509.
Petitioner relies on Allen v. Butterworth (Fla. 2000) 756 So

. 2d 52, in which the Florida Supreme Court commented that a statute imposing deadlines on capital postconviction procedures violated equal protection. ( Id . at p. 54.) The comment
was dictum. The Allen court conducted no equal protection analysis, and ba sed its holding instead on separation of powers grounds. ( Ibid .; see A bdool v. B ondi (Fla.
20 14 ) 141 So.3 d 529, 546.) In Abdool , the same court rejected an equal protection challenge to a different statute restrict ing the time for capital defendant s to f ile postconviction motions . Holding that the statute did not unjustifiably treat capital35

defendants differently from non capital defendants , the court added: “[E] ven if we were to find that equal protection is implicated, there is no constitutional violat ion.

. . . death sentences are necessarily different [from] other sentences. Unlike incarcerative sentences, which are carried out over a period of time, a death sentence is not accomplished until execution. Thus, defendants who have been
convicted and s entenced to death are necessarily treated differently. ” ( Abdool , at p. 546.) These observations are consistent with our conclusion here. 21 Our holding on the equal protection claim raised by petitioner poses no bar to other constitutional challenges to s ection 1509, one of which we discuss next. It merely reflects the reality that successive habeas corpus petitions in capital cases present problems distinct from those in noncapital cases.
D. The Separation of Powers Claim s Petitioner contends Propositi on 66 violates the separation of powers doctrine by defeating or materially impairing the exercise of judicial functions in various ways. After a review of separation of powers principles, we discuss petitioner’s attack on section 1509’s restrictions on u ntimely and successive

21 Petitioner also relies on State v. Noling (Ohio 2016 ) 75 N.E.3d 141. There, the Ohio Supreme Court decided that equal protection principles were violated by a statute requiring capital offen ders to obtain leave from that court to file an appeal from the denial of a postconviction motion for DNA testing. Other offenders had unfettered access to the court of appeals after such a denial. ( Id . at pp. 145

- 146.) The court disagreed with an argu ment that capital and non

- capital offenders were not similarly situated. “[T] he statutory scheme relevant here concerns applications for postconviction DNA testing.

. . . That certain applicants are sentenced to death and others to prison terms is near ly irrelevant under the statute

. ” ( Id . at p. 148.) The Ohio court’s reasoning is consistent with the equal protection principle that the pertinent inquiry is whether persons are similarly situated for purposes of the law challenged

. ( See People v. Guzman , supra , 35 Cal.4th at p. 592.) As explained above, the successive petition restrictions of section 1509, subdivision (d) address issues arising particularly in capital postconviction proceedings.36

habeas corpus petitions. We then address his arguments about Proposition 66’s time limits and other measures intended to expedite proceedings. 22
1. Governing Principles “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. III, § 3.)

“ Although the language of California Constitution article III, section 3, may
sug gest 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] , or that the actions of one branch may not significantly affect those of another branch. ” ( Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52 ( Mendocino ).) “Of necessity the judicial department as we ll as the executive must in most matters yield to the power of statutory enactments. [Citations.] The power of the legislature to regulate criminal and civil proceedi ngs and appeals is undisputed. ” ( Brydonjack , supra , 208 Cal. at pp. 44 2

- 44 3; accord, Men docino , supra , 13

22 In passing, petitioner claims the separation of powers d octrine is violated by the provisions of Government Code section 68665, calling on this court and the Judicial Council to reevaluate the competency standards for appointed counsel in capital postconviction proceedings. He relies on Brydonjack v. State Bar (1929) 208 Cal. 439, 442

– 443 ( Brydonjack ) , where we construed a statute to avoid any restriction on our power to determine the qualifications for admission to the bar. Brydonjack is inapposite. Here the statute in no way infringes on our authority
over admission to the practice of law. It merely provides guidelines for the exercise of our discretion over the qualifications of appointed counsel. (See Gov. Code, § 68665, subd. (b).)37

Cal.4th at p. 54. ) 23 The scope of this power is broad, but not unlimited

. “[T] he legislature may put reasonable re strictions upon constitutional functions of the courts provided they do not defeat or materially impair t he exercise of tho se functions.

. . . ‘ [T]he mere procedure by which jurisdiction is to be exercised may be prescribed by the Legislature, unless

. . . such regulations should be found to substantially impair the constitutional powers of the courts, or practically defeat
th eir exercise. [Citations.] ” ( Brydonjack , at p. 444; accord, Mendocino , at p. 54 .) We have emphasized that “[t] he separation of power s limitation on the Legislature’ s power to regulate procedure is narrow. Chaos could ensue if courts were generally able to pick and choose which provisions of the Code of Civil Procedure to follow and which to disregard as infringing on their inherent powers. The same concern applies to the Evidence Code, which, after all, genera lly limits a
court’ s ability to consider ev idence. In most matters, the judicial branch must necessarily yield to the legislative power to enact statutes. [Citations.] Only if a legislative regulation truly defeats or materially impairs the courts’ core functions

. . . may a court declare it inv alid. ” ( Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104 ( Le Francois ); see Legislature v. Deukmejian , supra , 34 Cal.3d at p. 674 [initiative measures are subject to the same constitutional limitations as statutes passed by the Legislature].) Our observa tions in Le Francois apply equally to the Penal Code’s procedural provisions.

23 Not all states grant such extensive authority over procedural law to the legislative branch. I n Florida, the Supreme Court has “ exclusive power to ‘ adopt rules for the practice and procedure in all courts. ’ Art. V, § 2(a), Fla. Const. ” ( Allen v. Butterworth , supra , 756 So .2d at p. 54.) Because of that significant differ ence, the separation of powers holding in Allen affords no support to petitioner.38

2. The Restriction on Untimely and Successive Petitions Section 1509, subdivision (c) states a general rule that an initial habeas corpus petition must be filed within one ye ar of the superior court’s order under Government Code section 68662, which directs the court either to appoint counsel for an indigent prisoner, find that the prisoner rejected an offer of an appointment, or deny an appointment on the ground that the pris oner is not indigent. Section 1509, subdivision (d) provides: “ An initial petition which is untimely under subdivision (c) or a successive petition whenever filed shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which he or she was convicted or is ineligible for the s entence. ” Petitioner contends the restrictions imposed by section 1509, subdivision (d) amount to a materia l impairment of the courts’ inherent authority to consider successive and untimely petitions. He points out that the statute’s limitations on habeas corpus claims go well beyond those this court has developed in cases such

as In re Robbins , supra , 18 Cal. 4th 770, and Clark , supra , 5 Cal.4th 750. What he does not point to is any authority holding that our power to prescribe limitations on habeas corpus petitions is exclusive , so that legislative action on that subject would violate the separation of powers . To the contrary, in Clark we reco gnized that legislation may be enacted “to control abuses of the writ and thereby spare courts with jurisdiction over habeas corpus petitions the burden of repetitious petitions.” ( Clark , at p. 771.) It is not unusual for initiative measures to “adopt various changes in procedural or substantive law previously mandated by this court.” ( Raven , supra , 52 Cal.3d at p. 348.) Petitioner cites no case in which such reforms have been struck down as material impairments of th e judicial function because they alter judicially established rules.39

As noted, we have long accorded priority to the legislative branch respecting measures “to regulate criminal and civil proceedings and appeals .” ( Brydonjack , supra , 208 Cal. at pp. 44 2

– 443 ; see Le Francois , supra , 35 Cal.4th at p. 1104.) Accordingly, to violate the separation of powers an initiative measure must do more than merely curtail procedures developed by this court. In
Mendocino , we pointed out that while the courts have inh erent power to act in certain areas without specific constitutional or legislative authorization, that does not mean a statute “necessarily violates the separation of powers doctrine whenever it legislates with regard to such an inherent judicial power or function.” ( Mendocino , supra , 13 Cal.4th at p. 5 7; see People v. Standish (2006) 38 Cal.4th 858, 879

- 880.) Thus, section 1509, subdivision (d) is not objectionable simply because it legislates in an area where we have exercised our inherent authority. W e note that some judicially imposed habeas corpus limitations have barred claims that do not go to the prisoner’s actual innocence, such as those based on the admission of illegally obtained evidence. (See Clark , supra , 5 Cal.4th at p. 767.) Proposition 66 goes further in this direction, but that does not make it an invasion of a core judicial function. Courts continue to exercise their authority to entertain habeas corpus petitions under section 1509, as they did under the previous common law
limitation s. The new restrictions may limit claims that this court previously
allowed prisoner

s to pursue, such as petitions seeking relief when a change in the law affects the validity of the statute under which the prisoner was convicted or sentenced. (See Reno , supra , 55 Cal.4th at p. 466; Clark , at p. 798; compare Lott
v. State (Mont. 2006) 150 P

. 3d 337, 342.) Going forward, prisoners may seek to challenge such limitations in the context of their individual cases. We express no view on their prospects for rel ief, holding only that the modifications imposed by section 1509 do not materially impair the functioning of the courts

.40

3. Time Limits Petitioner argues that a variety of time limits and calls for expedited proceedings in Proposition 66 interfere with the courts’ inherent power to fairly and effectively address all the matters before them. We note that grants of priority to certain matters, and directives to conduct proceedings as speedily as possible, are a common feature of procedural statutes. 24 Th ese legislatively imposed priorities have never been held to impair the courts’ authority to control the disposition of the cases on their dockets. Accordingly, the provisions of Proposition 66 imposing a duty on this court to “expedite the review” of cap ital cases, appoint counsel “as soon as possible,” and grant extensions of time for briefing only for “compelling or extraordinary reasons” ( § 1239.1, subd. (a)) are within the ordinary range of legislative authority. The same is true for provisions
that require superior courts to conduct habeas corpus proceedings “as expeditiously as possible” ( § 1509, subd. (f)), and that declare it a purpose of the statutes governing the Habeas Corpus Resource Center “to expedite the

24 For example, see sections 1048 ( setting calendar priorities for criminal
cases ) and 1050, subd ivision (a) ( giving criminal cases “pre ced ence over .

. . any civil matters” as to trial setting ) ; Welf are and Inst itutions Code sections 315 ( detention hearing for dependent minor “shall be held as soon as possible” and no later than next judicial day after petition is filed ), 632, subd ivision (a) ( same provision for delinquent mi nors ), 395 , subd ivision (a)(1) ( appeals in dependency cases given “precedence over all other cases” ), 800 ( same provision for delinquency appeals ) ; Code of Civ il Proc edure sections 35 (trial calendar preference for election matters ), 36 (trial calendar pre ference for the aged, children, and the very ill), 44 (preference on appeal for probate proceedings, election contests, and certain defamation cases), 460.5 (calendar preference and other provisions for expediting proceedings in libel and slander actions), 1062.3, subdivision (a) (declaratory relief actions “shall be set for trial at the earliest possible date and shall take precedence over all other cases”), 1291.2 (general calendar preference for arbitration cases); and Family Code section 3454 (expedited appellate procedures in child support enforcement cases).41

completion of state habeas corpus pr oceedings in capital cases” (Gov. Code, § 68660.5). Petitioner also challenges the specific time limits provided in sections 190.6, subdivision (d) and 1509, subdivision (f). Section 190.6, subdivision (d) imposes a five

- year limit on the completion of t he appellate and initial habeas corpus review processes. 25 Section 1509, subdivision (f) requires the superior court to resolve an initial petition within one year unless a substantial claim of actual innocence requires a delay, and sets a two

- year boundar y for the completion of every initial habeas corpus proceeding. 26 A more searching inquiry is necessary to determine whether such restrictions violate the separation of powers. The subject is not a new one. We have long recognized that i mposing fixed
tim e limits on the performance of judicial functions raises serious separation of
powers concerns. In Garrison v. Rourke , supra , 32 Cal.2d 430 ( Garrison ), we declared that “[a] time limitation for the court’ s action in a matter subject to its
determination i s not mandatory (regardless of the mandatory nature of the language), unless a consequence or penalty is provided for failure to do the act
within the time commanded. ” ( Id . at pp. 435

- 436; see Kabran v. Sharp Memorial

25 “ Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. ” ( § 190.6, subd. (d).) 26 “ Proceedings under this section shall be conducted as expeditiously as possible, consistent with a fair adjudication. The superior court shall resolve the initial petition within one year of filing unless the court finds that a delay is
nece ssary to resolve a substantial claim of actual innocence, but in no instance shall the court take longer than two years to resolve the petition. ” ( § 1509, subd. (f).)42

Hospital (2017) 2 Cal.5th 330, 343; P eople v. Allen (2007) 42 Cal.4th 91, 102.)
At issue in Garrison was the effect of a statute requiring the trial court to rule on an election contest within 10 days. 27 The court missed the deadline but subsequently issued a ruling. The losing party conten ded the court had lost jurisdiction when the time limit was exceeded. ( Garrison , at pp. 433

- 434.)
The Garrison court rejected the claim, invoking the separation of powers doctrine. “ While the courts are subject to reasonable statutory regulation of
proc edure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. [Citations.] Consequently an intent to defeat the exercise of the court ’ s jurisdiction will not be supplied b y implication. To what extent the Legislature may constitutionally enact regulations affecting procedure which will defeat or interfere with the exercise of jurisdiction or of the judicial power [citations] , is not necessary to determine in the absence, a s here, of provisions clearly indicating that intent. ” ( Garrison , supra , 32 Cal.2d at p. 436.) Reasoning that the primary aim of the statute before it was not speed, but ensuring the fairness of an election, Garrison declined to give the term “shall” its normal mandatory interpretation, which would “ lead to the result of defeating the aims and purposes of the statute and of raising serious constitutional questions .” ( Id . at p. 437.)
Garrison relied in part on In re Shafter

- Wasco Irr. Dist. (1942) 55
Cal .App.2d 48 4 ( Shafter

- Wasco ), which involved a time limit on the resolution of

27 Elec tions Code f

ormer section 8556 : “ The court shall continue in special session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within ten days after the submission thereof the court shall file its findings of fact and conclusions of law, and immediately therea fter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election. The judgment shall be entered immediately thereafter. ”43

an appeal. An uncodified statute governing the dissolution of irrigation districts provided that an action contesting the validity of such a dissolution “ ‘ shall be speedily tri ed and judgment rendered. Either party shall have the right to appeal at any time within thirty days after the entering of such judgment, and the appeal must be heard and determined within three months after the taking of such appeal. ’ ” ( Shafter

- Wasco , at p. 486.) The respondents moved to dismiss the appeal after the three

- month period expired. The court noted that “ all the proceedings in this appeal have been taken within the times established for appeals in ordinary cases ,” yet the time set for decis ion had elapsed before the respondents’ brief was due. ( Ibid .) “ The question here presented may be thus
stated: May the Legislature divest this court of its constitutional jurisdiction over the case and its duty to decide it by limiting the time in whic h a decision must be rendered, to a period within which it is impracticable, if not impossible, to decide
the issues? ” ( Id . at p. 487.)

“ Of course it is within the power of the Legislature to impose reasonable rules and regulations governing the exercise of a constitutional power. It is equally true that those constitutional powers may not be so restricted by unreasonable rules as to virtually nullify them. If the statute in question be strictly construed as mandatory and as divesting this court of juri sdiction in three months after the appeal was taken we would have had to decide the case

. . . one month and two days after the record was filed h ere, three days after appellant’ s opening brief was filed and twenty

- s even days before respondents’ brief was due for filing. We regard such a limitation on our constitutional power to decide the case as
unreasonable

. . . . While the record is not formidable it is not inconsiderable. While we have not examined it, there may be presented serious questions for
dec ision that might require careful consideration which could not be given within44

the time provided by the statute. ” ( Shafter

- Wasco , supra , 55 Cal.App.2d at p. 487.) The court acknowledged that a statute declaring an appeal “ must be heard
and determined wit hin three months ” would “ usually [be] construed as mandatory. ” ( Shafter

- Wasco , supra , 55 Cal.App.2d at p. 488.) However, relying on the rules favoring statutory construction to avoid absurd or unjust results, account for statutory context, and uphold a s tatute’s constitutional ity when reasonably possible , the court concluded that the time limit before it was

“ directory and was intended to give this appeal as early a hearing and decision as orderly procedure in this court will permit. ” ( Id . at p. 489.) O therwise, the court would have held the statute “an unreasonable limitation on the constitutional powers of the appellate and supreme courts. ” ( Id . at p. 488.)
In Garrison and Shafter

- Wasco , the courts preserved jurisdiction and maintained the separation of powers by holding that time limits phrased in mandatory terms were merely directory. 28 In People v. Engram (2010) 50 Cal.4th

28 Courts in other states have held that deadlines on judicial decisionmaking violate the separation of powers doctrine. (E.g., State v. Buser (2015) 302 Kan. 1, 8

- 9; In re Grady (Wis. 1984 ) 348 N.W.2d 559 , 570; Coate v. Omholt (Mont. 1983) 662 P.2d 591, 593; Sands v. Albert Pike Motor Hotel (Ark. 1968) 434 S.W.2d 288 , 291

- 292; State ex rel. K

ostas v. Johnson (Ind. 1946) 69 N.E.2d 592, 595 ; Atchison, T. & S. F. Ry. Co. v. Long (Okla. 1926) 251 P. 486 , 489; S c hario v. State (Ohio 1922) 138 N.E. 63, 64 ; s ee also, e.g., Resolute Ins. Co. v. Seventh Jud. Dist. Ct. of Okl. Co., Okl. (W.D.Okla. 1971) , 336 F.Supp. 497, 503; U

. S

. v. Brainer (D.Md. 1981) 515 F.Supp. 627 , 636 ; Ryan, Rush to Judgment: A Constitutional Analysis of Time Limits on Judicial Decisions (1997) 77 B.U. L. Rev. 761; but see State ex rel. Emerald People’ s Util. v. Joseph (Or. 1982) 640 P.2d 1011 , 1014 [ three

month limit for deciding appeals “d oes not on its face necessarily ‘ unduly burden or unduly interfere with the judiciary in the exe rcise of its judicial functions’ ”]. ) The California approach has the benefit of allowing time li mits set by the legislative branch to function as nonbinding guidelines, when reasonably possible.
(Footnote continued on next page.)45

1131 ( Engram ) we examined the separation of powers problems posed by a statute prescribing a mandatory calendar preference. A criminal prosecution had been dismissed under the speedy trial statute ( § 1382) because no judge was available to hear the case. The prosecutor challenged the dismissal, contending the preference for criminal cases provided in section 1050 required the tr ial court to assign the case to available courtrooms where juvenile, family law, and probate matters were
heard. 29 ( Engram , at pp. 1143

- 1144.)
The Engram court disagreed. “It is well established, in California and elsewhere, that a court has both the inh erent authority and responsibility to fairly

(Footnote continued from previous page.) A similar construction of a mandatory limit as “directory” was applied in Waite v. Burges s (Nev. 1952 ) 245 P.2d 994 , 996. 29 At the time, section 1050, subd ivision (a) provided: “ The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. To this end, the Legislature finds that the crimina l courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. Excessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witness es. Continuances also lead to longer periods of presentence confinement for those defendants in custody and the concomitant overcrowding and increased expenses of local jails. It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings. In further accordance with this policy , death penalty cases in which both the prosecution and the defense have informed the court that they are prepared to proceed to trial shall be given precedence over, and set for trial and heard without regard to the pendency of, other criminal cases and
a ny civil matters or proceedings, unless the court finds in the interest of justice that it is not appropriate.” (Italics added ; see Engram , supra , 50 Cal.4th at pp. 1150

- 1151 .)46

and efficiently administer all of the judicial proceedings that are pending before it,
and that o ne important element of a court’ s inherent judicial authority in this regard is ‘ the power .

. . to control the di sposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing
interests and maintain an even balance. ’ ( Landis v. North American Co. (1936) 299 U.S. 248, 254

– 255; see, e.g., Hays v. Superior Court (1940) 16 Cal.2d 260, 264 [ ‘ There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation
before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice .’ ]; Plachte v. Bancroft, Inc. ( N.Y.App.Div. 1957) 161 N.Y.S.2d 892, 893 [ ‘ It is ancient and undisputed law that courts have an inherent power over the control of their calendars, and the disposition of business before them, including the order in which disposition will be made of that business .’ ].)
As this c ourt observed in Brydonjack [, supra ,] 208 Cal. [at p. 442 ] : ‘ Our courts are set up by the Constitution without any special limitations; hence the courts have and should maintain vigorously all the inherent and implied powers necessary to properly and eff ectively function as a separate department in the scheme of our state government. ’ ” ( Engram , supra , 50 Cal.4th at p . 11 46.)
In Engram we acknowledged the Legislature’s power to enact rules of procedure, but quoted Brydonjack for the fundamental limitati on noted above:

“ ‘T he sum total of this matter is that the legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions. ’ ” ( Engram , supra , 50 Ca l.4th

at p. 11 47, quoting Brydonjack , supra , 208 Cal. at p. 444.) We discussed two examples in which the courts refused to give mandatory effect to statutes requiring47

a continuance of trial. In Lorraine v. McComb (1934) 220 Cal. 753 , 754 ( Lorraine ), a st atute provided that “the court shall postpone a trial” upon the agreement of counsel. The requirement was held to be directory only, to avoid impinging on the courts’ inherent authority to control the order of their business. ( Id . at pp. 756

- 757; see Eng ram , at pp. 1147

- 1148.) Similarly, in Thurmond v. Superior Court (1967) 66 Cal.2d 836 ( Thurmond ) , a statute declared that a trial or hearing “shall be postponed” if an attorney were a member of the Legislature and the Legislature were in session. ( Id . at p. 838, fn. 2.) The court deemed this provision directory, to protect the trial court’s discretion to control the order of its business so as to safeguard the interests of all parties. 30 ( Id . at p. 839.) It noted the “serious constitutional questions” t hat would otherwise arise under the separation of powers doctrine. ( Ibid .; see Engram , at pp. 1149

- 1150.)
The Engram court emphasized that under the terms of section 1050, the trial preference granted to criminal cases was to be applied in accord with th e policy of “ expedit [ing] these proceedings to the greatest degree that is consistent with the ends of justice .” ( Engram , supra , 50 Cal.4th at p. 1150.) It concluded that, “ particularly in light of the constitutional separation

- of

- powers considerations

s et forth in the decisions in Lorraine , supra , 220 Cal. 753, and Thurmond , supra , 66 Cal.2d 836, we find it abundantly clear that the provisions of section 1050 cannot properly be interpreted to require a trial court completely to forgo or
abandon considera tion of all civil cases or proceedings over an extended period of time when the number of criminal cases filed and pursued to trial continually

30 The Engram court explained that the term “directory” is sometimes used to d escribe statutes that prescribe no remedy for their violation, and sometimes, as in Lorraine and Thurmond , simply to signify that a statute is directive or permissive rather than mandatory. ( Engram , supra , 50 Cal.4th at p. 11 48, fn. 7 .)48

overwhelms the resources available to the court for the disposition of both
criminal and civil matters. ” ( Engra m , at p. 1152.)
One more case merits consideration. Before the court in Verio Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315 ( Verio ) were amendments to the
statutes reviewed in Thurmond , supra , 66 Cal.2d 836. The year after Thurmond
was de cided, the Legislature amended Code of Civil Procedure sections 595 and 1054.1 to specify that a continuance was mandatory if an attorney is a member of the Legislature and the Legislature is in session, unless the court determines that a
continuance would defeat or abridge a right to relief in specified proceedings seeking provisional relief. ( Verio , at p. 1327.) The Verio court observed that
while these forms of relief were discussed in Thurmond , the amendments “ left out this portion of the Thurmon d opi nion: ‘ Situations other than those involving provisional remedies may also arise in which a substantial existing right would be defeated or abridged by extended continuances. ’ ( Thurmond , supra , 66 Cal.2d at p. 839.) ” ( Verio , at p. 1329.) Relying on Eng ram , Thurmond , and Lorraine , the Verio court held that “[u] nless sections 595 and 1054.1, subdivision (b) are interpreted as directory, they continue to infringe on the independence of the judiciary. ” ( Verio , supra , 3 Cal.App.5t h at p. 1329.) The statute s did not include a qualification recognizing the court’s obligation to conduct proceedings “ in a manner that is consistent with the ends of justice ,” as in Engram , supra , 50 Cal.4th at p . 1151 . “ To the contrary, with certain exceptions, sections 595 and 1054.1 explicitly describe the
continuance or extension of time as ‘ mandatory. ’ ” ( Verio , at p. 1330.) Nevertheless, Verio refused to give the statutes mandatory effect. “ [ A ]s we noted above, the exceptions are directed entirely toward provisional reli ef and fail to account for our high court’ s conclusion that a mandatory lengthy stay may hamper
a court’ s fundamental mandate even outside the context of provisional relief. We49

conclude, therefore, that sections 595 and 1054.1 are unconstitutional to the extent they purport to be mandatory, and should continue to be treated as dire ctory, subject to a trial court’ s discretion as set forth in Thurmond

. ” ( Ibid .) Thus, our case law establishes that while the Legislature has broad authority to regulate proced ure, the constitutional separation of powers does not permit statutory restrictions that would materially impair fair adjudication or unduly restrict the courts’ ability to administer justice in an orderly fashion. Repeatedly, for over 80 years, Califor nia courts have held that statutes may not be given mandatory effect , despite mandatory phrasing, when strict enforcement
would create constitutional problems. S ection 190.6 raises similar concerns

. The
statute is framed in mandatory terms, and the voter s were told in the ballot
materials that the five

- year limit on the posttrial review process would be binding
and enforceable. O n the other hand, both proponents and the Attorney General contended at oral argument that the five

- year limit should not be gi ven mandatory
effect , but should instead be understood as largely aspirational. They urge that the
limit m ay be seen as providing a frame of reference for the initiative’s specific reforms designed to expedite the review process. Petitioner disagrees. H e contends the enforcement provisions of section 190.6, subdivision (e) show that the review limit was meant to be mandatory. In his view, a five

- year limit on posttrial proceedings is not only impracticable, but also invades the courts’ inherent authorit y to balance the matters before them in a way that is fair to all litigants. On balance, w e conclude it is best to accept the Attorney General’s and
intervene r’s con cessi on that the five

- year limit is not mandatory. We do so for

two reasons. First, rega rdless of how the ballot materials characterized the five

year review limit, section 190.6, subdivision (e) provide s no effective mechanism
to enforce th e limit. It states: “ The failure of the parties or of a court to comply50

with the time limit in subdiv ision (b) shall not affect the validity of the judgment or require dismissal of an appeal or habeas corpus petition. If a court fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense ma y seek relief by petition for writ of mandate. The court in which the petition is filed shall act on it within 60 days of filing. Paragraph (1) of subdivision (c) of Section 28 of Article I of the California Constitution, regard ing standing to enforce vi ctims’ rights, applies to this subdivision and subdivision (d). ” ( § 190.6, subd. (e).) Notably, the time limit for which section 190.6, subdivision (e) authorizes a writ remedy is not the five

- year limit on judicial review imposed by subdivision (d). It is the briefing time limit provided in section 190.6, subdivision (b), which states, as it long has, “i n all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Co urt shall be filed no later than seven months after the certification of the record for completeness

. . . or receipt by the appellant ’ s counsel of the completed record, whichever is later, except for good cause. ” Proponents assert
that section 190.6, sub division (e)’s reference to subdivision (b) was a drafting error. They claim they meant to refer to subdivision (d). But it is not cl ear that the reference to subdivision (b) in subdivision (e) was merely a typo graphical

error

. Well before Proposition 66 was adopted, section 190.6 provided that the failure of the parties or the court to comply with the deadline for filing the opening brief in the automatic appeal shall not affect the validity of the judgment.
S ubdivision (e) ’s reference to subdivision (b) continues that long

- standing provision.
I n any event, it would be no solution to simply replace the letter “b” with the letter “d” in section 190.6 , subdivision (e) . A party or victim would then be
authorize d to “seek relief by petition for writ of m andate” “[i]f a court fails to51

comply” with the requirement that “the state appeal and initial state habeas corpus review” be completed within five years. ( § 190.6, subds. (d) & (e).) However,

s e rious problems would arise from such a provision. Section 190.6, subdivision (e) contemplates relief by petition for writ of mandate if “ a court fails to comply.” (Italics added.) Yet no single court is in a position to comply with a comprehensive five

- year limit on the resolution of all posttrial proceedings i n capital cases. The review process includes both direct appeals to this court and habeas corpus proceedings that begin in the trial court and advance to the courts of appeal for appellate review. Meeting such a deadline requires the coordination of
effo rts by multiple courts and other actors. This court as well as the superior courts must appoint counsel. All three levels of the state courts must supervise briefing schedules and decide the legal issues presented to them. Counsel on both
sides must mee t their obligations to represent the interests of their clients in competent and timely fashion. The Legislature must provide funding sufficient for the superior courts to meet their greatly expanded responsibilities under Proposition 66, and for this cou rt and the courts of appeal to expedite review in capital cases without neglecting the other matters before them. As we made clear
in Engram , supra , 50 Cal.4th at page 1146, court s ha ve the “ responsibility to fairly and efficiently administer all of the j udicial proceedings that are pending before [them].” (Italics added.) If there were any one court responsible for compliance with the five

- year review limit of section 190.6, subdivision (d), presumably it would be this court, because the review process culminates here. But as a practical matter, writ relief to require us to enforce the limit is unavailable, because there is no tribunal with authority to issue a writ of mandate to this court. (See 2 Witkin, Cal. Procedure , supra , Courts , § 337, p. 429; Code Civ. Proc., § 1085, subd. (a) [“A writ of mandate may be issued by any court to any inferior tribunal

. . .” (italics added)];52

Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 7 30 ( Modern
Barber ) ; Davis v. Lansing (2d Cir. 1988 ) 851 F. 2d 72, 74 [federal courts lack jurisdiction to issue mandamus relief against state courts]; Robinson v. California Bd. of Prison Terms (C.D.Cal. 1998) 997 F.Supp. 1303, 1308 [to the same effect, citing cases] .) Furthermore, while writs of mandate may be i ssued to lower courts,
achievement of the five

- year goal depends in large part on a variety of discretionary determinations by superior courts and courts of appeal, most of which would not be controllable by writ of mandate. It is settled that

“ ‘ mandamu s will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way [citations]. ’ ” ( City of
Torrance v. S uperior Court (1976) 16 Cal.3d 195, 201

- 202, italics omitted; see 8 Witkin, Cal. Procedure , supra , Extraordinary Writs , § 99 et seq., p. 993 et seq.) This limitation is fundamental, and implicit in the provisions of our state Constitution governing writ j urisdiction. ( Modern Bar ber , supra , 31 Cal.2d at p. 731.) For all these reasons, section 190.6, subdivision (e) provides no workable means of enforcing the five

- year review limit in subdivision (d). As the concurring and dissenting opinion emphasizes , t he ballot materials suggested the five

- year limit w ould be mandatory. However, nowhere were the
voters informed of the details of an enforcement mechanism. The materials mentioned the availability of a court order, but did not explain how such an order

c ould effectively result in compliance. We recognize that the last sentence of section 190.6, subdivision (e) indicates the standing provisions in article I, section 28 of the California Constitution would give victims a right to enforce the five

-53

year limi t in subdivision (d). 31 Nevertheless, the problems with reforming the terms of section 190.6 to conform with the voters’ probable intent are insurmountable, which is the second reason we are persuaded that the statute cannot be given mandatory effect.
It would require extensive rewriting to create an operative enforcement mechanism. Even if we undertook that task, any provision that would make the
five

- year limit mandatory would pose serious separation of powers problems.
When we exercise our power of r eformation , we do so in order to preserve a statute’s constitutionality , not to threaten it

. “ [W] e have the authority to revise [a statute] in a manner that avoids constitutional problems

. . . . ” ( People v. Sandoval (2007) 41 Cal.4th 825, 844 , italics a dded.) “ [N] umerous decisions of the United States Supreme Court and lower federal courts and sister states, and numerous decisions of this court, amply support the propriety of judicial reformation

— including ‘rewriting’

— of statutes to preserve constit utionality

. . . . ” ( Kopp v.
Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 6 2 6 , italics added .) It has never been our practice to rewrite a statute only to strike it down as unconstitutional. The concurring and dissenting opinion argues at length that the voters
intended the five

- year limit to be mandatory. We do not dispute that point. However, it remains the case that section 190.6 lacks an effective enforcement mechanism. And while the statute is phrased in mandatory terms, the same was
true of t he statutes at issue in the cases we have discussed. ( Engram , supra , 50

31 “ A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter o f right. The court shall act promptly on such a request. ” (Cal. Const., art. I, § 28, subd. (c)(1).) Subdivision (b)(9) of article I, section 28 entitles victims “[t] o a speedy trial and a prompt and final conclusion of the case and any related post

-

judg ment proceedings .”54

Cal.4th at p. 1152, fn. 9; Thurmond , supra , 66 Cal.2d at p. 839; Garrison , supra , 32 Cal.2d at pp. 436

- 437; Lorraine , supra , 220 Cal. at p. 757; Shafter

- Wasco , supra , 55 Cal.App.2d at p. 488 ; Verio , supra , 3 Cal.App.5t h at p. 1319 .) The concurring and dissenting opinion notes, as we have (fn. 28, ante ), that other states have invalidated statutes which violate the separation of powers by imposing strict time limits. However, Californ ia courts have chosen a different approach to avoid separation of powers problems. Rather than striking down statutes that might unduly interfere with judicial functions, we construe them so as to maintain the courts’ discretionary control. In Engram , fo r instance, we noted “ the court in
Thurmond did not hold that the statutory provisions in question were invalid on
th eir face or were to be totally disregarded, but rather concluded that the statutes should be applied in a manner that accorded reasonable d iscretion to the court to safeguard the interests of all those before the court. ” ( Engram , at p. 1150.) In the cases cited above, mandatory statutory terms were intended to expedite proceedings or control docket management, but the courts declined to
inf er a broader intent to infringe on inherent judicial authority

. As the Verio court put it, “ we are not persuaded the Legislature intended to intrude on the right of the

courts ‘ “ to control [their] order of business and to so conduct the same that the rig hts of all suitors before them may be safeguarded. This power has been recognized as judicial in its nature, and as being a necessary appendage to a court organized to enforce rights and redress wrongs. ” ’ ” ( Verio , supra , 3 Cal.App.5t h at p. 1319, quoti ng Thurmond , supra , 66 Cal.2d at p. 839 , and Lorraine , supra , 220 Cal. at p. 75 6 .) Following nine decades of precedent, we too decline to infer that
lawmaker s intended strict adherence to a fixed deadline that would undermine the courts’ authority as a se parate branch of government. It is far from certain that the voters contemplated such a result. Nothing in the Proposition 66 suggests that55

short shrift should be given to the decisionmaking process, or that capital posttrial review proceedings should do minate dockets to the point that other cases would be left to languish. In the absence of clearer indications that this was the voters’ intent, we will not presume they meant to hamper the courts in the conduct of their
business

. (See Engram , supra , 50 C al.4th at pp. 1151

- 1152; Garrison , supra , 32 Cal.2d at p. 436.) Deciding cases and managing dockets are quintessentially core judicial functions. They are grounded in the Constitution and may not be materially impaired by statute. ( Le Francois , supra , 3 5 Cal.4th at p. 1104;
Mendocino , supra , 13 Cal.4th at p. 54; Brydonjack , supra , 208 Cal. at p. 444 .) Accordingly , we conclude that the five

- year review limit in section 190.6, subdivision (d) is directive only . Its provision that the courts “shall compl ete the state appeal and the initial state habeas corpus review in capital cases ” within five years is properly construed as an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled adminis tration of justice. ( Ibid .; see Garrison , supra , 32 Cal.2d at pp. 435

- 436 ; Shafter

- Wasco , supra , 55 Cal.App.2d at p. 489

. ) As in Engram , Garrison , Thurmond , and
Lorraine , the term “shall” is not mandatory. ( Engram , supra , 50 Cal.4th at pp. 1150

- 1152 ; Th urmond , supra , 66 Cal.2d at p p

. 838

- 840 ; Garrison , at p . 437;
Lorraine , supra , 220 Cal. at p p

. 754, 757; cf. Shafter

- Wasco , at p p . 488

- 489.)
In Engram we read the terms of section 1050 requiring calendar preference for criminal cases in light of the statu te’s declared “policy of expediting criminal

cases ‘ to the greatest degree that is consistent with the ends of justice .’ ” ( Engram , supra , 50 Cal.4th at p. 11 51, quoting § 1050, subd. (a).) The provisions establishing the preference were as facially mand atory as those of section 190.6, subdivision (d), but we rejected a construction that would lead to a “rigid and absolute rule.” ( Engram , at p. 1161.) Likewise here, section 190.6, subdivision (d) begins with a declaration that “[t] he right of victims of crime to a prompt and56

final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of
death carried out within a reasonable time

. ” ( § 190.6, subd. (d), i talics added.) This language makes it clear that the electorate did not intend to impose an
unreasonable limit. The five

- year period may be understood to express the voters’
view of what would ordinarily constitute “a reasonable time” for completing
revi ew proceedings. However, courts must make individualized decisions based on the circumstances of each case. They retain discretion over the time required to resolve particular matters, and over the management of their dockets. Similar considerations app ly to section 1509, subdivision (f)’s time limits for superior court rulings on initial habeas corpus petitions. Petitioner offers little argument supporting his challenge to this provision, but the Habeas Corpus Resource Center, in an amicus curiae brief , contends the statute’s one and two

year limits are too short for counsel and the courts to adequately perform their
functions. 32 Again we observe that no issue is raised by this petition concerning the infringement of an individual prisoner ’ s rights in a particular case. Such claims remain open. Here we consider only the effect of the time limits on judicial
functions. The limits in section 1509, subdivision (f) are plainly directory, under
Garrison , supra , 32 Cal.2d at page 436. No jurisdictional co nsequence is provided if they are not met. Nor can these limits be deemed mandatory in any other sense, despite the unconditional language in which they are stated. There is

32 The statute contemplates that an initial petition “shall [be] resolv e[d] .

. . within one year of filing unless the court finds that a delay is necessary to resolve a substantial claim of actual innocence, but in no instance shall the court take longer than two years to resolve the petition. ” ( § 1509, subd. (f).)57

no provision for their enforcement. The ballot materials did not portray the m a s rigid requirements . The Legislative Analyst explained that trial courts would “generally .

. . have one year to make a decision on the petition.” ( Voter Guide , supra , analysis of Prop. 66 by Legis . Analyst, p. 106 .) The subject is not
mentioned in the arguments for and against the measure. We note that section 1509, subdivision (f) begins with a provision calling for proceedings to “ be conducted as expeditiously as possible, consistent with a fair adjudication

. ” (Italics added.) As in Engram , “the statute explicitly recognizes a court’ s fundamental and overriding obligation to administer th e proceedings that are pending before it in a manner that is consistent with the ends of justice .” ( Engram , supra , 50 Cal.4th at p. 11 51.) Therefore, “t he prov ision cannot properly be interpreted as establishing an absolute or inflexible rule

. . . in total abrogation of a trial cou rt’ s ultimate control or discretion .” ( Ibid .) If in a particular case the time limits imposed by section 1509, subdivision (f) are not “consistent with a fair adjudication,” as the statute requires, the voters signaled that the interest of fairness must prevail. Moreover, as with section 190.6, nothing in section 1509 suggests the voters contemplated that courts would neglect their other business in order to comply with the time limits. Proposition 66 presumes that the courts will have sufficient resources to manage their caseloads. Our conclusion that the time limits in sections 190.6, subdivision (d) and 1509, subdivision (f) are merely directive does not empty them of meaning. 33

33 Established separation of powers precedent requires us to give a saving construction to the time limits in Proposition 66. However, we caution the drafters of initiative measures against the inclusion of sweeping statutory language that is inconsistent with constitutional norms. The voters should not be presented with terms whose ordinary meaning conflicts with the Constitution. Although we resolve doubts in favor of a p roposition’s validity, we must nevertheless review statutes adopted through the initiative process under generally applicable
(Footnote continued on next page.)58

Legislated time limits can establish as a matter of policy that the proceedings they govern should be given “as early a hearing and decision as orderly procedure . . . will permit.” ( Shafter

- Wasco , supra , 55 Cal.App.2d at p. 489.) They may serve as benchmarks to guide courts , if meeting the limits is reasonably possible. What is reasonably possible, however, will depend on a variety of factors, both
structural and case

- specific.
It remains to be seen h ow effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process. The time limits reflect the voters’ will, which we respect. However, they were presented to the voters by the proponents of Proposition 66 w ithout the benefit of hearings or research exploring their feasibility or their impact on the rest of the courts’ work. As the concurring opinion explains, these are issues of considerable complexity and difficulty. The implementation of Proposition 66 w ill necessarily be an ongoing process of exploration and adaptation. The Judicial Council is tasked with monitoring the review process established by the initiative. ( § 190.6, subd. (d).) Its supervision will shed light on the achievability and efficacy of the measure’s extensive reforms. Much depends on the funding made available by the Legislature. What cannot be permitted is the material impairment of judicial functions by any statute. The superior courts must be allowed to exercise their “ultimat e control or discretion over the order in which the cases pending before [them] should be considered” ( Engram , supra , 50 Cal.4th at p. 11 51), and to give each case the time

(Footnote continued from previous page.)
constitutional standards. ( Calfarm Ins. Co. v. Deukmejian , supra , 48 Cal.3d at pp. 814

- 815 .)59

required for reasoned decision. The courts of appeal may not be thwarted in the

ex ercise of their original jurisdiction to review superior court judgments in all the cases brought before them. (Art. VI, § 11, subd. (a).) Nor may this court be deprived of the ability to balance its responsibilities in capital cases with the other impor tant role we have performed since the creation of the intermediate appellate courts: “[T] o supervise and control the opinions of the several district courts of appeal, each of which is acting concurrently and independently of the others, and by such super vision to endeavor to secure harmony and uniformity in the decisions, their conformity to the settled rules and principles of law, a uniform rule of decision throughout the state, a correct and uniform construction of the constitution, statutes, and charte rs, and, in some instances, a final decision by the court of last resort of some doubtful or disputed question of law. ” ( People v.
Davis (1905) 147 Cal. 346, 348; see Cal. Rules of Court, rule 8.500(b)(1).) The Judicial Council, in drafting the “rules an d standards of administration” for carrying out Proposition 66’s reforms ( § 190.6, subd. (d)), must take care to preserve the courts’ inherent authority over their dockets.
E. The Effective Date of Proposition 66 Proposition 66 declares that “all section s of this act take effect immediately upon enactment.” (Prop. 66, § 19.) However, we stayed the implementation of the measure pending our resolution of this matter. The effective date is a question of some importance, particularly for the Judicial Counc il, which is tasked with developing rules and standards “[w]ithin 18 months of the effective date.” ( § 190.6, subd. (d).) We also deem it desirable for all parties affected by the initiative measure to be allowed to strive for compliance in an efficient manner, unencumbered by considerations of retroactive application upon the dissolution of our stay. We have in the past exercised our inherent power of reformation to revise the effective date of stayed legislation in order to avoid problems of60

compliance with statutory deadlines. ( California R edevelopment Assn. v.
Matosantos , supra , 53 Cal.4th at pp. 274

- 275.) We do the same here. The effective date of Proposition 66 shall be the date our opinion becomes final.
Provisions related to the effective date are otherwise unchanged.
III. DISPOSITION We discharge the order to show cause, and deny the amended and renewed petition for a writ of mandate and injunctive relief.

C ORRIGAN , A. C. J.

W E C ONCUR : W ERDEGAR , J. L IU , J. K RUGER , J. H OCH , J.*

_______________________________
* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.CONCURRING OPINION B Y LIU, J.

Proposition 66 amended Penal Code section 190.6, subdivision (d) to say that state death penalty appeals and habeas corpus proceedings must be completed within five years. All members of the court agree that this provision imposes no legally enf

orceable obligation. My colleagues disagree on how they reach this
conclusion: The court holds that the five

- year provision is “directive” and not mandatory (maj. opn., ante , at p. 55), whereas Justice Cuéllar’s concurring and dissenting opinion contends that the provision is mandatory and unconstitutionally intrudes on the prerogatives of the judicial branch (conc. & dis. opn., post , at
p. 22). I believe both positions are reasonable. Like Justice Cuéllar, I find it stunning that Proposition 66’s propon ents and the Attorney General claim that the
voters intended the five

- year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66. (Conc. & dis. opn., post , at pp. 2

– 3, 11

– 15 .) However, the electorate passed Proposition 66 against a backdrop of precedent construing similar mandates as nonmandatory when necessary to save their constitutionality (maj. opn., ante , at pp. 41

– 49), and we presume the electorate is “ ‘aware of
exi sting laws and judicial construction thereof’ ” ( People v. Gonzales (2017) 2 Cal.5th 858, 869). Although I am unsure whether I would construe voter intent as flexibly as our decisions have, I acknowledge this is one way of enforcing the2

separation of powe rs and there is a lot of water over the dam in our case law. So, although no one really disagrees that “the voters intended the five

- year limit to be mandatory” (maj. opn., ante , at p. 53), our precedent supports the court’s approach of imputing to the vo ters a further intent not to unconstitutionally impair the judicial function ( id. at p. 55). All members of the court agree that if the five

- year limit were mandatory, it “would undermine the courts’ authority as a separate branch of government.” ( Id. at p. 54; conc. & dis. opn., post , at p. 27.) I write separately to highlight that whether the five

- year limit is directive or unconstitutional, it does not and could not bind those charged with implementing Proposition 66. It is clear that a majority of th e 2016 electorate voted “to shorten the time that the legal challenges to death sentences take.” (Voter Information
Guide , Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst, p. 105 (2016 Voter Guide).) But Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity

— not this court, not the Judicial Council, not the Legislature

— can simply wave a magic wand and make it so. Although there may be ways to streamline the process, realisti c reforms must emanate from a clear understanding of the way the postconviction death penalty process works in California. As explained below, the five

- year limit is not grounded in the realities of California’s death penalty process or in the
reasonable possibilities for reform. Thus, in addition to lacking strict enforceability, the five

- year limit cannot serve as a realistic benchmark to guide courts or the Judicial Council as they implement Proposition 66. It is instead “ an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice.” (Maj. opn., ante , at p. 55.)3 I. Today there are nearly 750 prisoners on death row in California; they comprise roughly a quarter of all condemned inmates in the United States. The process for reviewing death judgments is complex and multilayered, and the incidence of reversible error is significant. (See U.S. Dept. of Justice, Bur. of Justice Statistics, Capital Punishment, 2013

— Stat istical Tables (2014) p. 19,
tbl. 16, available at https://www.bjs.gov/content/pub/pdf/cp13st.pdf [as of Aug.
24 , 2017] [reporting that 38 percent of the 8,466 prisoners sentenced to death
between 1973 and 2013 had their convictions or sentences overturned ]; Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973

– 1995 (2000) 78 Tex. L.Rev. 1839, 1850 [reporting that state and federal courts nationwide found prejudicial error in 68 percent of capital cases between 1973 and 1995].)
In California , after a death judgment has been imposed in the trial court, the defendant is entitled to an automatic appeal to review any errors that may have occurred during trial. (Pen. Code, § 1239, subd. (b); all undesignated statutory
references are to this code. ) The defendant is also entitled to file a petition for a writ of habeas corpus to assert violations of statutory or constitutional rights not apparent in the trial record. Habeas corpus petitions may be filed in state and federal courts. (§ 1473; 28 U. S.C. § 2254.) Capital defendants are entitled to counsel on direct appeal and in state habeas proceedings. (See Douglas v. People of State of Cal. (1963) 372 U.S. 353, 355 [recognizing the constitutional right of indigent criminal defendants to represent ation on appeal]; Gov. Code, § 68662.) On average in California, it takes three to five years after a death judgment to appoint appellate counsel. ( Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d 1050, 1056 ( Jones ), revd. by Jones v. Davis (9th Cir. 2015) 806 F.3d 538.) In April 2016, there were 49 capital defendants waiting for attorneys to be appointed for direct appeals and 360 capital defendants waiting for attorneys to be appointed4

for habeas corpus petitions. (2016 Voter Guide, supra , analysis of P rop. 66 by Legis. Analyst, p. 105.) About half of those waiting for appointment of habeas counsel have been waiting for over 10 years. ( Jones , at p. 1058.) The dearth of attorneys willing to take on these assignments is due in part to the sheer enormity of the undertaking. A single death penalty case can and often does dominate a lawyer’s practice for well more than a decade. Direct appeals in this court are completed on average 11.7 to 13.7 years after the death judgment. ( Jones , supra , 31 F.Supp.3d a t p. 1057.) Many appeals take considerably more time. (See, e.g., People v. O’Malley (2016) 62 Cal.4th 944 [25 years from judgment of the death to resolution on appeal]; People v. Cunningham (2015) 61 Cal.4th 609 [19 years]; People v. Brown (2014) 59 Cal .4th 86 [18 years].) State habeas review is completed on average more than 17 years after the death judgment. ( Jones , at p. 1059.) In April 2016, there were 337 direct appeals and 263 state habeas corpus petitions pending in this court. (2016 Voter
Gui de, supra , analysis of Prop. 66 by Legis. Analyst, p. 105.) As of 2014, only 81 inmates out of the more than 900 sentenced to death in California since 1978 have completed the postconviction review process in both state and federal court. ( Jones , supra , 31 F.Supp.3d at p. 1060.) Of those 81, about half have received relief from their death sentences, 13 have been executed, and 17 have had their executions stayed. ( Id. at p. 1069.) In 2008, the California Commission on the Fair Administration of Justic e (Commission) studied the death penalty postconviction process. (Cal. Com. on the Fair Admin. of Justice, Final Report (2008) (Commission Report).) The Commission was chaired by former Attorney General and Los Angeles District Attorney John Van De Kamp, and it included law enforcement officials, prosecutors, public defenders, and academics. The Commission held hearings and gathered input from a broad cross

- section of stakeholders. ( Id. at p. 113.) The5

Commission made several recommendations to expedit e what was widely regarded as a dysfunctional process. Recognizing that difficulties in appointing appellate counsel were a major source of delay, the Commission concluded that “[t]he most direct and efficient way to reduce the backlog of death row inmate s awaiting appointment of appellate counsel would be to again expand the Office of the State Public Defender.” ( Id. at p. 132.) The Commission recommended increasing the State Public Defender’s budget by one

- third. ( Id. at p. 133.) In the alternative, the Commission recommended increasing the compensation of private appellate attorneys who take death penalty cases. ( Id. at pp. 132

– 133.) To address the even greater delays in appointing habeas counsel, the Commission recommended expanding the Habeas Cor pus Resource Center from 34 lawyers to 150 lawyers, which would have required a five

- fold increase over the then

- current $14.9 million annual budget. ( Id. at p. 135.) These recommendations were not implemented. The Commission also addressed the backlog o f death penalty appeals pending in this court. This court decides 20 to 25 death penalty appeals each year and issues a published opinion in each case. It typically takes two to three years for this court to decide an appeal once it has been fully briefe d. (Commission Report, at p. 147.) The Commission endorsed the proposal of then Chief Justice Ronald George to amend the state Constitution so that this court would have discretion to transfer fully briefed death penalty appeals to intermediate appellate courts, provided that the Commission’s recommendations for appointing appellate and habeas counsel were also implemented. (Commission Report, at pp. 147

– 148.) This court also decides approximately 30 habeas corpus petitions each year; although we do not typically issue published opinions in these cases, our deliberative process includes the preparation of lengthy internal memoranda carefully examining each issue raised in each petition. The Commission endorsed6

a proposal to allow capital habeas corpus p etitions to be filed in superior court, with a right of appeal to the Court of Appeal and Supreme Court. ( Id. at p. 148.) In 2013, a coalition of law enforcement officers, prosecutors, and crime victims proposed a ballot initiative, called the Death Penal ty Reform and Savings Act of 2014 (2014 Proposed Initiative), that was similar in many ways to Proposition 66. The 2014 Proposed Initiative did not incorporate the Commission’s proposals to expand the Office of the State Public Defender or the Habeas Corp us Resource Center. But it did include some of the other Commission recommendations. One of the Proposed Initiative’s key provisions was an amendment of article VI, section 11, subdivision (a) of the California Constitution to provide that Courts of Appe al have appellate jurisdiction over death penalty cases, just as they have over other cases. (2014 Proposed Initiative, § 4.) Further, the 2014 Proposed Initiative would have added a new section to article VI authorizing this court to review Court of App eal decisions in capital cases and to summarily affirm if there are no errors affecting the judgment and there is no need to secure uniformity of law or address an important question of law. (2014 Proposed Initiative, § 5.) Also consistent with the Commi ssion’s recommendations, the 2014 Proposed Initiative would have added section 1509, subdivision (a), requiring that all habeas corpus petitions be transferred to the court imposing the capital sentence unless good cause is shown. These changes
were inten ded to address one of the findings of the Proposed Initiative: “The California Supreme Court is overloaded with death penalty appeals, causing lengthy and unnecessary delays. Spreading these death penalty cases among the Courts of Appeal (like the federa l courts do) will allow the defendants’ claims to be heard sooner. The Supreme Court has suggested a similar change. Experts have concluded this change will save hundreds of millions of dollars.” (2014 Proposed Initiative, § 2(7).)7

Moreover, the 2014 Pr oposed Initiative would have amended article I, section 27 of the California Constitution to add a provision substantially similar to section 190.6, subdivision (d) (section 190.6(d)) as amended by Proposition 66. It would have provided that “[s]tate cour ts shall complete the state appeal and initial state habeas corpus review” within five years after entry of judgment or after adoption of Judicial Council rules to expedite the capital appeal process. (2014 Proposed Initiative, § 3.) After some signature gathering, the initiative proponents decided to postpone the effort until 2016. (Nirappili, Coalition Delays Initiative to Reform
State Executions , Mercury News (May 11, 2014) p. B4.) Proposition 66, the result of that delayed effort, retains many of the features of the 2014 Proposed Initiative. But the proponents abandoned any effort to amend the California Constitution. (See Cal. Const., art. II, § 8, subd. (b) [requiring signatures equal to 8 percent of the votes cast in the last gubernatorial electi on to place an initiative amending the state Constitution on the ballot, but only 5 percent for a statutory initiative].) In particular, Proposition 66 omitted the proposal to amend the state Constitution to give Courts of Appeal jurisdiction over direct appeals in capital cases, and it placed the five

- year limit in a statute (section 190.6(d)) rather than in article I of the Constitution. Proposition 66 also omitted the 2014 Proposed Initiative’s finding that this court is overloaded with death penalty a ppeals, but it retained the provision in section 1509, subdivision (a) to authorize transfer of capital habeas petitions to the superior court. Proposition 66 does not increase the availability of appellate and habeas attorneys, beyond requiring this court to compel certain criminal appellate attorneys to take death penalty appeals against their will. (§ 1239.1, subd. (b).) It is unclear how effective this strategy will be in light of the shrinking and graying pool of private appellate attorneys. (See Mi ller, Wanted: Appellate Lawyer. Pay:8

$70/hr. , The Recorder (June 15, 2006).) Although it is possible that compelling appellate attorneys to take capital cases will increase the number of capital appellate attorneys, it is also possible that this obligatio n will result in fewer criminal appellate attorneys or will lead to the appointment of attorneys ill

- suited for the arduous and lengthy commitment required for a capital appeal. Further, the new provision that this court “shall only grant extensions of
tim e for briefing for compelling or extraordinary reasons” (§ 1239.1, subd. (a)) may accelerate the filing of appellate briefs. But there are reasons why capital briefs are lengthier

— opening briefs of 300 to 500 pages, raising 30 to 40 claims,

are common

— and often take several years to complete. Capital cases involve a
three

- stage process in which the jury must determine (1) whether the defendant is guilty of first degree murder, (2) whether certain special circumstances are present, and (3) whether the defendant should receive the death penalty or a sentence of life without the possibility of parole. ( §§ 190.2, subd. (a), 190.3; see
e.g., People v. Masters (2016) 62 Cal.4th 1019, 1027

– 1041.) Each of these stages may give rise to claims of legal error, and a labyrinth of procedural default and forfeiture rules strongly incentivizes capital defendants to raise every conceivable claim of error. (See, e.g., In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750, 767

– 768; In re Waltreus (1965) 62 Cal.2d 218, 225; In re
Dixon (1953) 41 Cal.2d 756, 759; 28 U.S.C. § 2254(b)(1). ) In addition, the record in capital cases is usually massive, often comprising more than 5,000 pages of trial transcript plus several thousand pages of exhibits, jur or questionnaires, and
additional materials

— all of which must be carefully reviewed. Moreover, the irrevocable nature of the death penalty heightens the stakes and prompts appellate attorneys to be as thorough and careful as possible in their briefing. Whatever the statutory standard for granting extensions of time, attorneys must be given sufficient time to complete their briefs.9

Even if these measures do accelerate the filing of an appeal in this court, Proposition 66, unlike the 2014 Proposed Initiat ive, does not increase the number of courts hearing death penalty appeals. Because of the sheer scale of the briefing, the enormity of the record, and the number of claims typically raised by each defendant, this court devotes considerable time and attent ion to capital appeals. We could increase the number of such appeals we resolve each year, but only at the expense of noncapital cases. As the court today makes clear, Proposition 66 cannot override the constitutional doctrine of separation of powers and compel this court to alter its docket by deciding more capital cases and fewer noncapital ones. (Maj. opn., ante , at p. 55 [construing § 190.6(d) “to maintain the courts’ discretionary control over the conduct of their business”].) Although transfer of c apital habeas corpus petitions to the superior court may expedite the adjudication of those petitions, superior courts asked to help reduce this court’s substantial backlog of habeas corpus cases will likely require additional resources to address petition s that are often as lengthy and time consuming as direct appeals. (See, e.g., In re James David Beck (filed Nov. 28, 2012, S206945) [320

- page petition for writ of habeas corpus with 12 claims, numerous subclaims, and 18 volumes of exhibits].) It is uncle ar whether the Legislature will appropriate funds for this purpose. Nor does Proposition 66 expedite the appointment of capital habeas attorneys. And the constitutionality of Proposition 66’s restrictions on successive petitions (§ 1509, subd. (b)) has y et to be fully tested. (Maj. opn., ante , at pp. 39

– 40.) To put the postconviction process into perspective, let us consider a real example. A case not far from the norm is that of Robert Mark Edwards. He was convicted of first degree murder with burglar y
- murder and torture

- murder special circumstances, and he was sentenced to death in September 1998. Counsel was appointed four years later in October 2002. Counsel filed a record correction10

motion in October 2003. The record correction process was compl eted, and a record of appeal filed in this court, in February 2005. The record consists of 29 volumes of the clerk’s transcript, with a total of 9,117 pages; this includes 6,597 pages of juror questionnaires. The reporter’s transcript, i.e., the transcri pt of the trial, spans 39 volumes with a total of 5,957 pages. The opening brief (431 pages) was filed in December 2006; the Attorney General’s brief (270 pages) was filed in February 2008, and the reply brief (140 pages) was filed in November 2008. Also in November 2008, counsel had to withdraw because he was being appointed to the superior court. New counsel was appointed in January 2009 and, after getting up to speed on the case, filed a 79

- page supplemental brief in September 2010. A supplemental re spondent’s brief was filed in March 2011, and a supplemental reply brief was filed in April 2011. Additional supplemental briefing was ordered by this court in December 2012 to address recently decided cases of this court and the United States Supreme Cou rt; this briefing was filed in January 2013. Altogether, the briefing raised some 38 issues. The case was argued in May 2013, and the judgment was affirmed in August 2013. ( People v. Edwards (2013) 57 Cal.4th 658.) Meanwhile, habeas corpus counsel was not appointed until November 2010, 12 years after the death judgment. A 524

- page habeas corpus petition was filed in November 2013. The Attorney General’s 187

- page informal response was filed in October 2014, and a 433

- page reply to the informal response was filed in December 2015. The petition remains pending in this court. In Edwards’s case, 19 years have passed since the judgment of death. The direct appeal has been completed, the state habeas corpus petition has not been decided, and the case has not yet begun its lengthy sojourn in federal court. It is not clear how Proposition 66 would have appreciably accelerated the appointment of appellate or habeas counsel, shortened the record correction process, abbreviated the multiple rounds of briefing addressing numerous issues drawn11

from a voluminous trial record, or reduced the amount of time the fully briefed case was pending in this court. In sum, the protracted nature of the postconviction death penalty process is the product of several factors, in cluding chronic delays in appointing appellate and habeas counsel, limitations on funding for the Office of the State Public Defender and Habeas Corpus Resource Center, the enormity of the record and the scale of the parties’ briefing in light of the pecul iar nature of the death penalty, and the fact that all appeals go to a single court, inevitably resulting in a bottleneck.
II. Section 190.6(d), as amended by Proposition 66, provides: “The right of victims of crime to a prompt and final conclusion, as pr ovided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judici al Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later , the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five

- year period provided in this subdivision.” I agree that section 190.6(d), construed in light of our precedent, is “directive.” (Maj. opn., ante , at p. 57.) But what does directive mean? Our case law suggests that the answer depends on the nature of the statutory directive and the judicial interest at stake.12

In People v. Engram (2010) 50 Cal.4th 1131 ( Engram ), we addressed section 1050, subdivision (a)’s language that “criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings.” Based on the statutory context and history, we said this provision “cannot properly be interpreted to requir e a trial court completely to forgo or abandon consideration of all civil cases or proceedings over an extended period of time when the number of criminal cases filed and pursued to trial continually overwhelms the resources available to the court for the disposition of both criminal and civil matters.” ( Engram , at p. 1152.) We then went further to reject the argument that the statute forbids the allocation of certain courtrooms or judges exclusively to civil matters. ( Id. at pp. 1153

– 1154.) We relied o n case law demonstrating that the statute was not intended to preclude a superior court from maintaining separate departments handling civil and criminal matters in the interest of efficiently organizing and adjudicating claims within its jurisdiction. ( I bid. ) Thurmond v. Superior Court (1967) 66 Cal.2d 836 ( Thurmond ), a paternity action, involved statutory provisions requiring the court to grant a continuance when the attorney for one of the parties is a member of the Legislature and the Legislature is in session. We held that the provisions “should be given full force and effect wherever and whenever it may be done without unduly adversely affecting the rights of others,” and we prescribed a number of factors the court should consider in exercising its d iscretion as to whether a continuance should be granted. ( Id. at p. 840.)
In In re Shafter

- Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 ( Shafter

Wasco ), the court declined to treat as mandatory a statutory deadline requiring judicial resolution of an appeal concerning the dissolution of an irrigation district to be decided three months after the appeal is filed. The court instead construed13

the statute as directing the court “to give this appeal as early a hearing and decision as orderly procedure in this cou rt will permit.” ( Id. at p. 489.) In each of these cases, the court interpreted as “directive” a seemingly mandatory statute that threatened to impair core judicial functions, and the decisions make clear that courts have authority to determine the proper weight to be given to the statutory directive. That determination is contextual. In some cases, as in Thurmond , the directive statute can serve as a default that constrains judicial discretion unless certain conditions apply. ( Thurmond , supra , 66 Cal.2 d at
p. 840.) In Engram , the force of the statute was more vague; we construed the directive to give priority to criminal cases over civil cases as subject to the open

ended condition that “such precedence [must be] consistent with the ends of justice.” ( Engram , supra , 50 Cal.4th at p. 1161.) And Shafter

- Wasco , in interpreting a statutory deadline as a directive “to give this appeal as early a hearing and decision as orderly procedure in this court will permit” ( Shafter

Wasco , supra , 55 Cal.App.2d at p. 489), said it was ultimately up to the court to determine a reasonable timeframe for deciding the appeal. Directive statutes that set realistic time limits on judicial decisions may inform how quickly cases should be decided, although the issue is ultimate ly left to judicial discretion. But when a time limit purports to dictate what is not “reasonably possible” to achieve (maj. opn., ante , at p. 58), it cannot serve as a meaningful benchmark. Such is the case with the five

- year time limit in section
190.6 (d). The realities of California’s postconviction death penalty process mean that without a radical reorganization of this court’s functions, a restructuring of the role of lower courts beyond what Proposition 66 provides, and a significant
infusion of re sources from the Legislature, the five

- year time limit is not remotely
close to realistic.14

This impracticality is underscored by the fact that section 190.6(d) says nothing about how the five

- year limit should be met. And this deficiency is compounded by the fact that section 190.6(d) differs from other statutory deadlines in terms of its scope: The five

- year limit does not require one particular court to meet a particular deadline in one particular proceeding; it is directed at a complex judicial process involving multiple courts, multiple actors, and multiple proceedings. (Maj. opn., ante , at p. 50.) T he five

- year deadline imposed on the entire state death penalty postconviction process is so sweeping in its objective yet so vague on the means of accom plishing the objective that it does not provide useful guidance for those charged with implementing Proposition 66. Section 190.6(d) purports to delegate the challenge of meeting the five

- year limit to the Judicial Council, which is supposed to “ continuous ly monitor the timeliness of review of capital cases and .

. . amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings
within the five

- year period provided in this subdivision.” But how is the Ju dicial Council supposed to bring about the vast acceleration of the death penalty process necessary to meet the five

- year deadline? The Judicial Council has no authority to direct the Legislature to appropriate more funds to expand the Office of the State Public Defender or the Habeas Corpus Resource Center. It has no authority to change the state Constitution to permit Courts of Appeal to hear death penalty appeals. And it has no authority to require this court or any other court to devote a greater pro portion of its docket to death penalty cases at the expense of other cases that fall within its constitutional responsibilities. The delegation of broad rulemaking power to the Judicial Council spared the voters (and the proponents of Proposition 66) from having to make difficult choices as to what should be sacrificed for the sake of dramatically expediting the death penalty. But these are precisely the choices that the lawmaking authority,15

whether the Legislature or the electorate, must make with clarity , transparency, and fidelity to separation

- of

- powers principles if it wishes to create a mandate that can lawfully and practically guide the Judicial Council’s quasi

- legislative rulemaking. Such a mandate is lacking here. Of course, section 190.6(d) is on ly one part of Proposition 66; the proponents of Proposition 66 stated at oral argument that the five

- year limit “is not the centerpiece” of the initiative. Proposition 66 prescribes several specific reforms, such as a new rule for granting extensions of time for briefing (§ 1239.1, subd. (a)), new rules concerning appointment of counsel ( id ., subd. (b)), and a requirement that initial habeas corpus petitions be filed in or transferred to the sentencing court absent good cause (§ 1509, subds. (a), (g)) wit h either party having a right to take an appeal to the Court of Appeal (§ 1509.1, subd. (a)). The Judicial Council may prescribe rules to effectuate these provisions, and the efficacy of these measures in expediting the death penalty process remains to be seen. But whether Proposition 66 actually speeds up (or slows down) the process will have nothing to do with section 190.6(d)’s unelaborated and unrealistic directive that state death penalty appellate and habeas corpus proceedings “shall” be completed
wi thin five years. The court properly acknowledges that this provision reflects the voters’ desire to shorten the postconviction death penalty process. But the five

- year limit, construed as directive or simply unconstitutional, has no binding effect and
pr ovides no guidance for responsible actors charged with the fair and efficient administration of justice. L IU , J. W E C ONCUR : W ERDEGAR , J.

K RUGER , J. H OCH , J.*

__________ * Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.CONCURRING AND DISSE NTING OPINION BY CUÉ LLAR, J.

What voters most need so they can exercise their constitutionally protected franchise effectively is clarity and cand or. Particularly at a time when public discourse dwells on foreign interference in our electoral process, social media bots, and manipulated Facebook news feeds, it is possible

–– perhaps even easy

–– to forget how millions of voters endeavor to familiari ze themselves with the candidates and issues of the day, and to understand the consequences of their vote. Voters who sought to do so by studying Proposition 66, the Death Penalty Reform and Savings Act of 2016 (Proposition 66), would not recognize the in itiative the majority purports to uphold today. What reasonable voters would have clearly recognized instead

–– based on the statutory text, the official description by the Legislative Analyst, and the arguments made by the initiative’s proponents

–– is

t hat Proposition 66 contained a genuine, enforceable, five

- year deadline for completion of the state court appeal and resolution of the initial habeas corpus petition in death penalty cases. Candor requires us to be equally clear about
whether such a deadl ine accords with our law: It does not. A statutory limit on the amount of time a court may spend deciding a case is an intrusion on quintessential judicial functions and violates the California Constitution’s separation of powers provision. (See Cal. Co nst., art. III, § 3.) Only by misconstruing this mandatory five

- year time limit as nothing more than an “exhortation” for faster death penalty adjudication does the majority2

sidestep this outcome. (Maj. opn., ante , at p. 55.) In doing so, the majority disregards the electorate’s clear purpose in enacting Proposition 66 and fails to promote forthright deliberation. It distorts our statutory and constitutional jurisprudence, and

–– by insisting the mandate be treated as both a mere “exhortation” yet one “not empty” of legal meaning

–– leaves in its wake grave uncertainty about the rules and standards the Judicial Council is supposed to adopt to render meaningful that exhortation. (Maj. opn., ante , at pp. 55, 57.) Proposition 66 further runs afoul of the California Constitution by purporting to authorize an appeal to the Court of Appeal from the decision of a superior court on an initial capital habeas corpus petition. (See § 1509.1.) The Constitution grants this court exclusive appellate jurisdiction “w hen judgment of death has been pronounced.” (Cal. Const., art. VI, § 11, subd. (a).) To the extent the majority finds otherwise, I dissent with respect.
I. Our first task is to answer a question as simple as it is important: What
kind of time limit di d the voters enact? When voters face the often daunting process of considering a new statute or constitutional amendment at the ballot box, state law directs the Secretary of State to prepare a voter information guide. The guide must include a complete c opy of each proposed measure, the arguments and rebuttals for and against, and an analysis prepared by the Legislative Analyst. (Elec. Code, §§ 9082, 88001.) Sometimes the guide runs hundreds of pages. But it is the primary means by which voters inform themselves about the policy choices in an election, and this court considers it a key resource in determining the meaning and validity of the laws enacted by voter initiative. So when it falls to us to interpret and apply a voter

- enacted initiative

— “our primary goal” being “to determine and give effect to the underlying purpose of the law” ( Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332)

— we rely in particular on the analyses and3

arguments contained in the voter information guide, along with the text of the initiative, in identifying the statute’s purpose and determining how it should be construed. ( People v. Morales (2016) 63 Cal.4th 399, 406.) Now imagine a reasonable voter consulting the voter information guide to Proposition 66. What would the vote r have gleaned

–– immediately

–– about the initiative’s purpose? In the very first of its findings and declarations, the initiative stated that our “death penalty system is ineffective because of waste, delays, and inefficiencies.” (Voter Information Gui de, Gen. Elec. (Nov. 8, 2016) Prop. 66, § 2, subd. (1), p. 212 (Voter Guide).) The findings and declarations went on to lament that “[f]amilies of murder victims should not have to wait decades for justice” and that “[h]undreds of killers have sat on deat h row for over 20 years.” ( Id ., § 2, subd. (3), p. 213.) The findings and declarations concluded by promising that if enacted, “[a] capital case can be fully and fairly reviewed by both the state and federal courts within ten years.” ( Id ., § 2, subd. (1 0), p. 213.) To fulfill that explicit promise, the initiative added and amended various provisions of the Penal Code to include several new procedures. One of them was a requirement that “the state courts shall complete the state appeal and the initial

st ate habeas corpus review in capital cases” within five years of the entry of judgment. (Pen. Code, § 190.6, subd. (d), italics added; all undesignated statutory references are to the Penal Code.) The ballot pamphlet told voters, in typeface as conspicuou s as it was emphatic, that this provision “ Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years .” (Voter Guide, supra , analysis of Prop. 66 by Legis. Analyst, p. 106; see generally Elec. Code, § 9087, subd. (b) [the Le gis. Analyst must provide an analysis that is “easily understood by the average voter,” which “may contain background information, including . . . the effect of enacted legislation which will become effective if the measure is adopted”].) In the event the process “takes more than five years,4

victims or their attorneys could request a court order to address the delay.” (Voter Guide, supra , analysis of Prop. 66 by Legislative Analyst, p. 106; see Pen. Code, § 190.6, subd. (e) [“If a court fails to comply wi thout extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate”].) That’s why proponents, in explaining “WHAT PROPOSITION 66 DOES,” assured voters that if enacted, all state appeals should henceforth “be limited to 5 years.” (Voter Guide, supra , argument in favor of Prop. 66, p. 108.) Then the 2016 general election took place. With the aforementioned provisions at the heart of the initiative

–– and no doubt infl uenced by promises
made in the Voter Guide

–– voters narrowly enacted Proposition 66. Petitioner then immediately filed this petition for writ of mandate. In it, he advanced a separation of powers challenge to the provision requiring California courts to resolve the automatic appeal and initial habeas corpus petition in capital cases within five years. But here’s the twist: At oral argument, the initiative’s proponents (intervener Californians to Mend, Not End, the Death Penalty)
admitted that an actual five

- year deadline would “perhaps not” be constitutional. The proponents instead let it slip that the initiative’s five

- year deadline is not a deadline after all, but just a “goal” that has no real consequence if it goes unmet. The Attorney General, als o purportedly arguing in support of Proposition 66,
added that this five

- year “goal” was not “binding” and is really just “an invitation to take up the question of how long these appeals should take.” This is what might be charitably described as a novel reinterpretation of the initiative’s five

- year deadline for resolution of the automatic appeal and initial capital habeas corpus petition. It is at odds

–– entirely

–– with what the initiative says, how it was designed to work, and how it was sold. Even more remarkably, the majority blithely accepts this neutering of what clearly appeared to the voters5

to be a five

- year deadline into a mere palaver on the processing of death penalty cases. And not just any palaver: By reimagining the initiative as noth ing more than an earnest exhortation calling on courts to consider dialing up the speed of death penalty adjudication, the majority upholds something quite different from the initiative considered and enacted by the electorate, leaving in its wake
uncertai nty about how we interpret initiatives and whether the time limits included in Proposition 66 have any legal effect.
A. Section 190.6, subdivision (d) provides: “The right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonable time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt i nitial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. The Judicial Council shall continuously monitor the timeliness of review of capital cases and shall amend the rules and standards as necessary to complete the state
ap peal and initial state habeas corpus proceedings within the five

- year period provided in this subdivision.” (Italics added.) Petitioner argues that a statute purporting to dictate when a court shall hear and determine a case would unconstitutionally int erfere with the judiciary and violate the separation of powers. Both the Attorney General and intervener

proponents so concede. Little wonder: With but one exception, state supreme courts have unanimously concluded that the timing of a judicial decision is a core judicial function, protected from legislative encroachment. ( State v. Buser (2015)6

___ P.3d ___ [302 Kan. 1, 9] ( Buser ); see, e.g., Sands v. Albert Pike Motor Hotel (Ark. 1968) 434 S.W.2d 288, 291

- 292 [“as laudable as the purpose intended may
b e,” requiring a court to decide a workers’ compensation case within 60 days is “an unconstitutional exercise of a judicial function by the legislative branch”];
State ex rel. Kostas v. Johnson (Ind. 1946) 69 N.E.2d 592, 595 [declaring that because “no depa rtment of the state government can be controlled or embarrassed by another department of the government, unless the Constitution so ordains,” “statutes undertaking to fix the time within which courts shall act in certain cases or matters” are unconstitutio nal and void]; Atchison, T. & S. F. Ry. Co. v. Long (Okla. 1926) 251 P. 486, 489 ( Long ) [“to compel the courts to give a hearing to a particular litigant at a particular time, to the absolute exclusion of others who may have an equal claim upon its attenti on, strikes a blow at the very foundation of constitutional government. The right to control its order of business and to so conduct the same that the rights of all litigants may properly be safeguarded, has always been recognized as inherent in courts . . . .”]; Schario v. State (Ohio 1922) 138 N.E. 63, 64 [“Manifestly, when a case can be heard and determined by a court must necessarily depend very largely upon the court docket, the quantity of business submitted to the court, the nature, the importance, and the difficulties attending the just and legal solution of matters involved. It would be obviously unfair to the court, as well as unfair to other parties likewise interested in the early and expeditious determination of their causes, to require a cour t to suspend or delay equally important matters theretofore submitted to the court for its consideration and determination in order to give preference to the hearing and determination of some particular case or character of cases. At least that is a

matte r that should be most properly and wisely left to the sound discretion of the court.”] .) “To strip [courts] of that authority” over the control of judicial business7

“ would necessarily render them so impotent and useless as to leave little excuse
for their existence.” ( Long , at p. 489.) The majority does not contest a court’s inherent authority to manage its docket in a manner that best promotes the pursuit of justice. (Maj. opn., ante , at p. 46.) What the majority claims instead is that, under our pre cedent, “statutes may not be given mandatory effect, despite mandatory phrasing, when strict enforcement would create constitutional problems.” ( Id . at p. 49.) But the responsibility we shoulder is to render constitutional rulings clear enough to foster meaningful deliberation rather than simply offering vague references to “constitutional problems,” and to construe statutes in a manner that preserves the integrity of the democratic process. A statute’s purpose is paramount and may not be disregarded. L anguage is not putty. And it is not for us to declare, in gross, that a legislative body will never be understood as having enacted an unconstitutional law, for the question whether the enacting body had such a purpose will depend on the particular statut ory text, structure, and legislative history. So it is one thing to declare a statute unconstitutional when it cannot be saved, yet quite another to pretend a statute means what it does not simply so it
can be saved. The latter course takes the court wel l beyond adoption of a saving construction when the statute reasonably allows it, into a realm straining the court’s norms as well as its powers. ( Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187 [“ ‘ “If this court were to insert in the st atute all or any of the . . . qualifying provisions [required to render it constitutional], it would in no sense be interpreting the statute as written, but would be rewriting the statute

. . . .” ’ ”].) Saving an unsound construction is neither possible nor desirable. Indeed, what we actually do when legislation might seem to regulate the time afforded the judiciary to decide motions or cases is instead quite different from what the majority describes. We require a clear statement that such8

regulation wa s contemplated. (See Garrison v. Rourke (1948) 32 Cal.2d 430, 436 ( Garrison ) [“an intent to defeat the exercise of the court’s jurisdiction will not be supplied by implication”].) This particular clear statement rule is one closely
related to the constit utional avoidance canon, which requires courts to avoid, where possible , interpreting a statute in a way that might render it unconstitutional. ( Ibid . [finding it unnecessary to decide whether a purported time limit for the
resolution of an election conte st would “defeat or interfere with the exercise of .

. . the judicial power . . . in the absence, as here, of provisions clearly indicating that intent” (citations omitted, italics added)].) When faced with an attempt to impose a deadline on a court’s dec isionmaking power, we have sometimes found the absence of a clear statement to impose a mandatory or enforceable deadline where
no “ ‘consequence or penalty is provided for failure to do the act within the time commanded.’ ” ( Edwards v. Steele (1979) 25 C al.3d 406, 410.) On other occasions, we have focused on “the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment.” ( Ibid .) As t his court recently (and unanimously) reiterated, “ ‘[t]here is “ ‘ no simple, mechanical
test’ ” for making this determination.’ [Citation.] The question is ultimately one of legislative intent .” ( Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 343, italics added ( Kabran ).) Indeed: Because the mandatory nature of a statutory deadline depends on intended legislative purpose, we may not simply characterize such a deadline as directive where (as here) “the Legislature clearly expresses a contrary intent.” ( People v. Allen (2007) 42 Cal.4th 91, 102.) This, too, is the principle at the heart of our analysis in People v. Engram (2010) 50 Cal.4th 1131 ( Engram ). There, we held that section 1050’s general policy giving criminal cases preced ence over civil cases did not require the Riverside County Superior Court to assign criminal cases to the limited number of9

courtrooms “reserved for specialized civil matters or to the several judges from outside the county who had been assigned specifical ly to that court to assist in the trial of long

- delayed civil matters.” ( Engram , at p. 1138.) One sentence in section 1050 provided that “criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any ci vil matters or proceedings.” But what we explained is that “the statute explicitly declares that such precedence is to be applied ‘[ i ] n accordance with ’ the policy set forth in the preceding sentence, that is, in accordance with the policy of expediting c riminal cases ‘to the greatest degree that is consistent with the ends of justice .’ ” ( Engram , at p. 1151, quoting § 1050, subd. (a).) Accordingly, the single sentence in section 1050 “clearly” could not be interpreted to deprive the superior court “of t he ultimate control over the cases within its jurisdiction.” ( Engram , at pp. 1151

- 1152; see id

. at p. 1161 [“a statute must be construed, if reasonably possible, in a manner that avoids a serious constitutional question”].) A candid analysis of a statut e’s purpose was also pivotal to In re Shafter

Wasco Irr. Dist. (1942) 55 Cal.App.2d 484. The Court of Appeal construed a statute providing that an appeal of a judgment concerning an irrigation district’s dissolution “ ‘must be heard and determined within three months after the taking of such appeal.’ ” ( Id . at p. 486.) The Court of Appeal acknowledged that “[s]uch language is usually construed as mandatory,” but cautioned that it is also “ ‘in many cases . . . directory merely.’ ” ( Id . at p. 488.) Beca use “courts should construe statutes so they may be held constitutional where it is reasonably possible to do so” ( id . at p. 488), the Court of Appeal concluded that this language could and would be construed as reflecting a purpose to grant the appeal “as early a hearing and decision as orderly procedure in this court will permit” ( id . at p. 489).
And in Garrison , supra , 32 Cal.2d 430, we held that a statute providing that a court “ ‘shall’ ” ( id . at p. 435) decide an election contest within 10 days shou ld10

not be interpreted as mandatory where “the consequence or penalty for the failure of the court to file findings of fact and conclusions of law within the designated period was not included in the statute” ( ibid .) and where a mandatory effect would “lead to the result of defeating the aims and purposes of the statute” ( id . at p. 437). What we may not do, under the guise of the avoidance canon, is “ ‘rewrite the law or give the words an effect different from the plain and direct import of the
terms used. ’ ” ( People v. Leal (2004) 33 Cal.4th 999, 1008; accord, Salinas v.
United States (1997) 522 U.S. 52, 59

- 60.) For good reason: Invoking the canon when there’s no plausible interpretation of a statute that can avoid a constitutional conflict does justice neither to the enacted statute, the voters’ will, nor the constitutional values at stake. Courts do not have the power to disregard a clear statement that a judicial deadline is mandatory, nor to construe a mandatory deadline to be something other than w hat it is. Yet that is precisely what the majority confesses it has done. I respectfully submit that the majority’s construction of the five

- year deadline in section 190.6, subdivision (d) is no exercise in judicial restraint, but
instead an undisclos ed and unjustified judicial reformation of the statute. That provision, as enacted by the voters, clearly states that “[w]ithin five years of the adoption of the initial rules or the entry of [the death] judgment, whichever is later,
the state courts shal l complete the state appeal and the initial state habeas corpus review in capital cases.” True: By itself, the word “shall” in subdivision (d) does not necessarily indicate that a mandatory or compulsory meaning was intended, for we have frequently const rued the word “shall” to be directory. (See Engram , 50 Cal.4th at p. 1151, fn. 8; Garrison , supra , 32 Cal.2d at p. 437; Thurmond v. Superior Court (1967) 66 Cal.2d 836, 839 ( Thurmond ); Lorraine v. McComb (1934) 220 Cal. 753, 757 ( Lorraine ).) What the maj ority

— and Justice Liu’s concurring opinion

— neglect to mention is that we have never done so in the face11

of a clear indication that the time limit or other restriction on judicial discretion was designed precisely to have mandatory effect. (Cf. Engram , at p. 1151 [the provision of section 1050 granting criminal cases precedence in trial setting over civil cases was explicitly subject to the policy set forth in the preceding sentence “of expediting criminal cases ‘to the greatest degree that is consisten t with the ends of justice ’ ”]; 1 Garrison , at p. 437 [a mandatory interpretation would “defeat[] the aims and purposes of the statute”]; Thurmond , at p. 839 [a mandatory interpretation “was not intended by the Legislature”]; Lorraine , at p. 757 [“We

cannot ascribe to the legislature the intent to make the action of the parties compulsory upon the court in each instance”].) In each of these cases, a directory interpretation advanced the legislative purpose. Which is exactly the opposite of what a director y interpretation does to the most reasonable understanding of the electorate’s purpose in enacting the five

- year deadline. Subdivision (e) of section 190.6 expressly provides a mechanism by which crime victims can seek to enforce the deadline: “If a cour t fails to comply without extraordinary and compelling reasons justifying the delay, either party or any victim of the offense may seek relief by petition for writ of mandate.” In their briefs, all of the parties agreed that Proposition 66 “requires” or “ directs” state courts to complete the automatic appeal and review of the initial state habeas corpus petition within five years, and that the five

- year deadline is

–– and was intended to be

–– enforceable through a petition for writ of mandate. The penalt y set forth in section 190.6, subdivision (e) thus confirms that the voters’ unambiguous purpose was to enact a mandatory, enforceable deadline, not “an

1 Because the countervailing policy was explicitly set forth in section 1050 itself, the majority is just plain wrong in claiming that “[t]he provisions establishing the preference [at issue in Engram ] were as facially mandatory as those of section 190.6, subdivision (d).” (Maj. opn., ante , at p. 55.)12

exhortation . . . to handle cases . . . expeditiously.” (Maj. opn., ante , at p. 55; see Kabran , supra , 2 Cal.5th at p. 343.)
Note that a different subdivision of section 190.6 already provided, prior to Proposition 66, that “it is the Legislature’s goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing.” (§ 190.6, subd. (c), italics added.) The voters’ approval of different language in subdivision (d) strongly suggests that a different purpose was intended. (See Klein v. United States of America (2010) 50 Cal.4th 68, 80.) Note
too th at the Penal Code, prior to the enactment of Proposition 66, was replete with precatory language to expedite death penalty cases. (E.g., §§ 190.6, subd. (a) [“The Legislature finds that the sentence in all capital cases should be imposed expeditiously”]; 1239.1, subd. (a) [“It is the duty of the Supreme Court in a capital case to expedite the review of the case”].) It is not a reasonable inference that the voters sought merely to echo such provisions’ effect when they adopted statutory language providing “Within five years of the adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases.” (§ 190.6, subd. (e).) Although the text and structure at issue here are sufficient to demonstrate the voters’ purpose, the materials in the voter information guide extinguish whatever doubts could conceivably remain. As stated above, a heading in the Voter Guide’s analysis told voters in bold and italicized type that Proposition 66

“ Requires Completion of Direct Appeal and Habeas Corpus Petition Process Within Five Years .” (Voter Guide, supra , analysis of Prop. 66 by Legis. Analyst, p. 106.) The Legislative Analyst went on to explain that “[i ]f the process takes more than five years, victims or their attorneys could request a court order to address the delay.” ( Ibid .) Whether this remedy is workable or not in principle,13

every last one of the cases cited by the majority lacks the essential in gredient clearly present here: a statutory provision explicitly providing for a penalty or consequence if the time limit were exceeded. It’s quite telling that “neither the initiative’s text nor its supporting materials describe any intention” to merely elaborate on the existing precatory language to expedite death penalty cases. ( People v. Valencia (2017) 3 Cal.5th 347, 357 ( Valencia ).) This deadline has teeth

— indeed, the kind of teeth a reasonable voter would have readily observed. So did the Legisl ative Analyst, who referred, five times , to the five

- year “requirement” or stated that the initiative “requires” completion of state court review within five years. (Voter Guide, supra , analysis of Prop. 66 by Legis. Analyst, pp. 106

- 107.) 2 In describing “WHAT PROPOSITION 66 DOES,” intervener

- proponents, too

–– in sharp contrast to their revisionist concession at oral argument

–– confirmed to voters that “[a]ll state appeals should be limited to 5 years” if the initiative were enacted. (Voter Guide, supr a , argument in favor of Prop. 66, p. 108.) And the uncodified findings and declarations in the initiative itself were replete with representations that the initiative “will” mean that defendant’s legal claims will be heard sooner and that victims “will” r eceive timely justice. (Voter Guide, supra , Prop. 66, § 2, subds. (6), (10), p. 213; cf. Valencia , supra , 3 Cal.5th at p. 360 [“ the alleged effect on the Three Strikes Reform Act is not reflected in the uncodified provisions of Proposition 47 that set for th the purposes of the measure”] .) Indeed, the mandatory five

- year deadline represented a significant statutory change, whose fiscal impact the Legislative Analyst sought to estimate. (Voter Guide, supra , analysis of Prop. 66 by the

2 The ballot pamphlet referred to “time limits,” “time frame,” and “time lines” seven times. (Voter Guide, supra , Prop. 66, pp. 104

- 109.) Not once did the materials indicate that compliance with these time limits, time frame, and time lines would be optional.14

Legis. Analyst, p. 10 7 [“the requirement that each challenge generally be completed in five years . . . could result in the filing of fewer, shorter legal documents”; “the ongoing fiscal impact of the measure on state costs related to legal challenges to death sentences is unk nown”]; ibid . [“the state would incur annual cost increases in the near term to process hundreds of pending legal challenges within the time limits specified in the measure”; “such costs could be in the tens of millions of dollars annually for many years”] ; cf. Valencia , supra , 3 Cal.5th at p. 365 [“the analysis provides no [fiscal] estimate of any effect on third strike offenders and their crimes nor any discussion of the fiscal effects on the state prison system”].) By construing the five

- year deadline a s mandatory, we promote , instead of defeat, the repeatedly highlighted purpose of the initiative. (Cf. Engram , supra , 50 Cal.4th at p. 1150 [construing the preference for criminal cases as mandatory would be inconsistent with the statutory purpose “ ‘to e xpedite these proceedings to the greatest degree that is consistent with the ends of justice’ ”]; Garrison , supra , 32 Cal.2d at p. 437 [construing the 10

- day limit as mandatory would “lead to the result of defeating the aims and purposes of the statute”].) In short, all relevant ballot materials reinforced the idea that the five

year deadline was mandatory and could be enforced by a petition for writ of mandate. The campaign for Proposition 66 itself did so, too. (See California Housing Finance Agency v . Patitucci (1978) 22 Cal.3d 171, 177 [“evidence of [the proposition’s] purpose may be drawn from many sources”]; id . at p. 178 [examining newspaper and campaign literature concerning the proposition]; see generally People v. Hodges (1999) 21 Cal.4th 109, 114 [“we are obliged to interrogate the electorate’s purpose, as indicated in the ballot arguments and elsewhere”].) The website for “No on 62, Yes on 66” pledged that “Proposition 66 will ensure justice for both victims and defendants by [¶] Reforming th e15

Appeals Process ,” which included four bullet points, the first of which was “Limit all state appeals to 5 years.” 3 Proposition 66 supporter (and San Bernardino County District Attorney) Michael Ramos wrote that “Proposition 66 ensures that all appeals a re heard within five years.” 4 An editorial in the online Times of San Diego reiterated that “Prop. 66 reforms will speed up the appeals process, ensuring appeals are heard within 5 years.” 5 Even the president and CEO of the Criminal Justice Legal Foundat ion, which appears here as counsel for intervener

proponents, stated that Proposition 66 “compresses the process.” 6 No one on the “Yes on 66” side was telling voters “It’s really just a goal, not a deadline.” (Cf.
Valencia , supra , 3 Cal.5th at p. 350 [“t he ballot materials for Proposition 47 supplied no notice to voters that the measure intended to amend the resentencing criteria of the Three Strikes Reform Act”].) When we are trying to determine what the voters enacted, what voters were told matters. 7 After all, the question

3 <https://noprop62yesprop66.com/get

- the

- facts/> (cached by Google as it appeared on June 27, 2017). 4 Ramos, Don’t abolish death penalty, make the system work , San Bernardino Sun (Aug. 23, 2016) <http://www.sbsun.com/opinion/20160823 /dont

abolish

- death

- penalty

- make

- the

- system

- work

- michael

- a

- ramos> (as of Aug. 24, 2017). 5 Hestrin, Proposition 66 Will Fix California’s Death Penalty System (July 30, 2016) < http://timesofsandiego.com/opinion/2016/07/30/proposition

- 66

- will

fix

- californi as

- broken

- death

- penalty

- system/> (as of Aug. 24, 2017). 6 Wright, Death Penalty Dilemma: Will Vote on Props. 62 and 66 Hinge on Costs? (Nov. 4, 2016) <https://calmatters.org/articles/can

- cost

- change

- voters

minds

- about

- the

- death

- penalty

- backers

- of

- props

- 62

- and

- 66

- hope

- so/> (cached by Google as it appeared on July 5, 2017). 7 Following the proponents’ lead, nonpartisan organizations and media outlets likewise described the five

- year deadline as mandatory. The League of Women Voters of California said tha t “[b]oth direct appeals and habeas petitions would have to be completed within five years from the time of sentencing” <https://cavotes.org/vote/elections/ballot

- measures/proposition

- 66

- death

- penalty

procedures> (as of Aug. 24, 2017). Southern California Public Radio said “it
(Footnote continued on next page.)16

whether a time limit is mandatory or directive “is ultimately one of legislative intent.” ( Kabran , supra , 2 Cal.5th at p. 343.) Where, as here, the text, structure, and history do not permit us to characterize the five

- year deadli ne as merely a goal, the avoidance canon “has no role to play.” ( Warger v. Shauers (2014) ___ U.S. ___, ___ [135 S.Ct. 521, 529].) Given this backdrop, there is a straightforward, readily

- grasped constitutional flaw in section 190.6, subdivision (d). So far as I can see, courts across the country have found a violation of the separation of powers in every single case addressing a legislative attempt to impose an enforceable judicial deadline. (See, e.g., Buser , supra , 302 Kan. at p. 2 [invalidating a st atutory deadline that required parties to file a joint request with the court “ ‘that such decision be entered without further delay’ ” if the Supreme Court failed to file its decision on a submitted matter within 180 days]; Com. v. Omholt (Mont. 1983) 662 P.2d 591, 593 [invalidating a statutory deadline that authorized a referral to the judicial standards commission when a court failed to issue a decision in 90 days]; State ex rel. Watson v. Merialdo (Nev. 1954) 268 P.2d 922, 926 [invalidating a statutory deadline that required the judge’s salary be withheld for

(Footnote continued from previous page.) would place time limits on legal appeals that now drag on for 20 years or more” <http://www.scpr.org/news/2016/10/03/64988/election

- 2016

- faq

- proposition

- 66

- death

- penalty

- pro/> (as of Aug. 24, 2017). (See also Editorial, Abolish the death penalty , L.A. Times (Sept. 4, 2016) p. A21 [“Proposition 66 also directs the courts to conclude both the direct state appeal and any habeas corpus petitions . . . within five years”]; Egelko, Voters facing stark death

- penalty choice , S.F. Chronicle ( Sept. 15, 2016) p. A9 [“It would require the state Supreme Court to rule on a prisoner’s direct appeal within five years”]; Calefati, Californians have chance to weigh fate of a costly and ‘broken’ system , S.J. Merc. News (Sept. 30, 2016) p. 1A [“Proponen ts of Proposition 66 say the measure would accelerate the appeals process . . . by requiring state courts to issue decisions on the cases within five years”].)17

failure to issue a decision in 90 days]; In re Grady (Wis. 1984) 348 N.W.2d 559, 569

- 570 [same].) 8 The five

- year deadline in section 190.6, like the deadlines in the cases above, includes a penalty or consequence for its violation: Section 190.6, subdivision (e) authorizes a party or victim to petition for writ of mandate to enforce the deadline. Accordingly, the separation of powers doctrine requires us to strike down this mandatory five

- year dea dline.
B. The majority’s efforts to avoid this conclusion are far from convincing. The majority’s misguided analysis begins, but does not end, with its reliance on an exceedingly narrow and unjustified reading of section 190.6, subdivision (e). 9 In th e majority’s view, “the delay” that may be the subject of a

8 Notice how the existence of time limits in a constitution for specified aspects of the judici al function does nothing at all to validate legislative attempts to impose other time limits or otherwise diminish concern over the threat to the separation of powers. The validity of a legislatively imposed time limit depends on the time limit’s own comp atibility with constitutional principles, and is not appropriately cast in a positive light simply because the constitution itself incorporates certain specific time limits that apply to the judiciary. ( Holliman v. State (Ga. 1932) 165 S.E. 11, 15 [invali dating a statute setting a 90

- day deadline to grant or refuse all applications for certiorari, despite a constitutional provision setting a deadline for disposing of certified cases; “We do not think it is within the power of the General Assembly, by any e xercise of its legitimate legislative functions, to impose limitations and restrictions upon the discharge of purely judicial functions upon a distinct co

- ordinate branch of the government which is alike independent of the two other coordinate branches of the State government

— executive and legislative. The sovereign State, the people, may by constitutional amendment declare a subordination of one of these powers to another. But, until they do, the court can not recognize such subordination, or regard th e surrender of the functions delegated to it by the constitution we have sworn to support, as otherwise than a breach of the sacred obligations we assume upon our induction into office.”]; see also State ex rel. Kostas v. Johnson , supra , 69 N.E.2d at p. 59 5 .) 9 Section 190.6, as amended by Proposition 66, provides: “(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.
(Footnote continued on next page.)18

petition for writ of mandate is limited to the delay in filing the opening appellate brief under subdivision (b). (See maj. opn., ante , at p. 50.) But there is no such limitation in the part of subdivision (e) that authorizes the writ of mandate. There

(Footnote continued from previous page.) “(b) Therefore, in all cases in which a sentence of death has been imposed on or after Januar y 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopt ed by the Judicial Council. “(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature’s goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion o f the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petiti on. “(d) The right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution, includes the right to have judgments of death carried out within a reasonabl e time. Within 18 months of the effective date of this initiative, the Judicial Council shall adopt initial rules and standards of administration designed to expedite the processing of capital appeals and state habeas corpus review. Within five years of th e adoption of the initial rules or the entry of judgment, whichever is later, the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases. The Judicial Council shall continuously monitor the timeliness of re view of capital cases and shall amend the rules and standards as necessary to complete the state appeal and initial state habeas corpus proceedings within the five

- year period provided in this subdivision. “(e) The failure of the parties or of a court to c omply with the time limit in subdivision (b) shall not affect the validity of the judgment or require dismissal of an appeal or habeas corpus petition. If a court fails to comply without extraordinary and compelling reasons justifying the delay, either par ty or any victim of the offense may seek relief by petition for writ of mandate. The court in which the petition is filed shall act on it within 60 days of filing. Paragraph (1) of subdivision (c) of Section 28 of Article I of the California Constitution, regarding standing to enforce victims’ rights, applies to this subdivision and subdivision (d).”19

is such a limitation in the first sentence of subdivision (e)

— which addresses the validity of the underlying judgment or the viability of the appeal

— but it is quite
obvious that this sentence and the writ of mandate sentence serve different purposes and thus have different scopes of operation. The first sentence of new subdivision (e) represents a slight modification of section 190.6, former subdivision (d), which provided: “The failure of th e parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.” (Stats. 1996, ch. 1086, § 1, p. 7656.) Because the only “time lim it provided by this section” ( ibid .) at that time was the briefing deadline in subdivision (b), it became necessary, once section 190.6 had been amended to include another time limit, to clarify that the first sentence of subdivision (e) applied only to th e deadline in subdivision (b). But the second sentence in subdivision (e) is entirely new. It does not purport to create a remedy against a party

— yet it is a party, after all, who does or does not comply with a briefing deadline. Rather, the
second se ntence creates a remedy against a court : “ either party” or “any victim” may “petition for writ of mandate” against “a court” for “the delay.” (§ 190.6, subd. (e), italics added.) Now consider the implication of inferring a restriction in the scope of t his sentence, as the majority proposes. Doing so would mean that the “party” who had failed to submit a timely opening appellate brief would be able to seek relief from “a court” for “the delay” in the party’s timely filing of its own brief

–– a remedy wi thout a right if there ever was one. Given its context, the structure of the statute, and the materials presented to the voters, we can safely conclude that what the second sentence in subdivision (e) means is precisely what it says: Either party, or any victim, may seek relief by petition for writ of mandate when a court fails to comply with a deadline set forth in section 190.6.20

What’s more, a reasonable member of the electorate would also have considered the concluding sentence of section 190.6, subdiv ision (e). This sentence expressly provides that a victim’s right to enforcement of the Victims’ Bill of Rights (Cal. Const., art. I, § 28) includes standing to enforce the rights set forth in section 190.6, subdivision (d)

— i.e., the five

- year deadline. Subdivision (d), in turn, explicitly links the five

- year deadline to the constitutional “right of victims of crime to a prompt and final conclusion, as provided in paragraph (9) of subdivision (b) of Section 28 of Article I of the California Constitution , includ[ing] the right to have judgments of death carried out within a reasonable time.” The majority’s reading

— which denies victims standing to enforce the
five

- year deadline

— simply makes the final sentence of subdivision (e) disappear. The majo rity says it must construe the five

- year deadline as directory “regardless of how the ballot materials characterized” it because there is no “workable” means of enforcing the deadline. (Maj. opn., ante , at pp. 49, 52.) The majority cited no support for t his conclusion because none exists, nor did it offer any compelling argument for why this approach makes sense. That the scheme is unworkable is both true and easily understood. Of course there’s no tribunal in which a party could seek a writ of mandate directed to us. But even more important, compliance with the five

- year deadline depends in large part on a series of discretionary determinations by superior courts, the Court of Appeal, and this

court

— yet mandamus cannot be used to “ ‘ “control the dis cretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way [citations].” ’ ” ( City of Torrance v. Superior Court (1976) 16 Cal.3d 195, 201

- 202.) So the majority is right to conclude that the mandate mechanism

–– no matter how it is interpreted

–– is a hollow promise.21

Yet the question before us is not the workability of an arrangement involving a petition for writ of mandate to e nforce the five

- year deadline. It is
instead whether a reasonable voter would have understood the purpose of the
mandate mechanism to make the five

- year deadline not merely an aspiration, but an enforceable reality. And subdivision (e) of section 190.6 i s indeed a clear
statement that the five

- year deadline is mandatory, not directory. Everything
before us

— the text and structure of the initiative, its unambiguous purpose, the ballot materials, and the construction endorsed by all of the parties

— would lead a reasonable voter to believe that this provision, which had attracted so much attention, constituted a real deadline, and one that could be enforced by a petition
for writ of mandate. When the text of a voter initiative provides that government “sh all” complete some action within a specified period of time (§ 190.6, subd. (d)), the analysis of the initiative in the ballot pamphlet confirms that the new law “requires” completion of some action within the specified period of time (Voter Guide, supra , analysis of Prop. 66 by Legis. Analyst, pp. 106

- 107), and the proponents’ argument there and in its general campaign promises that the new law “will” achieve that objective (see ante , fn. 3 and accompanying text), a reasonable
voter would conclude that the initiative imposes an enforceable deadline. So, too, when the initiative goes so far as to authorize aggrieved parties to obtain a judicial writ to enforce the time limit, a reasonable voter would feel confident that the new law enacts real, meaningful c ontrol over the judicial function. Moreover, nothing in our case law, the case law from any other jurisdiction, or in the inherent logic of constitutional or statutory interpretation makes the characterization of a statutory time limit for judicial proce sses turn on whether the enforcement mechanism would be “workable.” (Maj. opn., ante , at p. 52.) It’s doubtful that any mechanism to enforce a statutory deadline on the resolution of a
case or motion could ever be entirely workable, since such a deadline (as the22

majority concedes) would necessarily interfere with the court’s control over its docket and thus violate the separation of powers. (See maj. opn., ante , at p. 54.) The majority’s interpretive move, in reality, is to declare that it would never

r ecognize any deadline as mandatory. Our court has the power to take a “different” approach from that of every other court inside or outside of California ( ibid .), but it is hard to see how this approach squares with our mission, when interpreting a statut e, to construe it in a manner that gives effect to the legislative purpose. (See Goodman v. Lozano , supra , 47 Cal.4th at p. 1332.) Equally unpersuasive is the majority’s next justification for construing the clearly mandatory deadline as merely directory. According to the majority, it was not sufficient that the text, structure, context, and legislative history demonstrated that the deadline was mandatory. Rather, the ballot materials also needed to inform the voters about “the details of an enforcement mechanism” and “how such an order could effectively result in compliance.” (Maj. opn., ante , at p. 52.) If such a requirement is to be plucked out of thin air

–– as I fear this one has been

–– then it needs a compelling substantive or institutional justi fication that the majority does not provide. To my knowledge, we have never required the voters to sit through a constitutional law lecture before we would be willing to interpret a
law as it was written. Such a requirement strikes me as inconsistent with the very 83

- year

- old case the majority purports to be vindicating. Unlike this case, Lorraine did not even involve a constitutional challenge ( Lorraine , supra , 220 Cal. at p. 756)

— we instead considered only the mandatory/directory character of a st atute providing that a court “ ‘shall’ ” postpone a trial or hearing for up to 30 days “ ‘when all attorneys of record of parties who have appeared in the action agree to such postponement.’ ” ( Id . at p. 754.) Tellingly, we did not inquire whether the
Le gislature had sufficiently ruminated about “the details” of the rule’s operation or23

what effect it would have on a court. Instead, in accordance with our longstanding rule that the mandatory/directory distinction “is ultimately one of legislative intent” ( Kabran , supra , 2 Cal.5th at p. 343), we focused on whether the Legislature had “the intent to make the action of the parties compulsory upon the court in each instance.” ( Lorraine , at p. 757; see also Thurmond , supra , 66 Cal.2d at p. 839.) Finding no su ch intent, we declared the statutory text to be properly interpreted as directory. ( Lorraine , at p. 757.) 10 That’s quite a contrast with the five

- year deadline here, which even the majority concedes was meant to be mandatory. (Maj. opn., ante , at pp. 49, 52

- 53.) When a statute encroaches on a court’s discretion in managing its docket

— and there is a clear statement the statute is mandatory, not directory

— then we have no option but to provide the public and the other branches with the requisite clarity of decision and doctrine by declaring the statute unconstitutional as a violation of

10 The majority is equally misguided in suggesting that no separation of powers violation would arise until death penalty cases “dominate dockets to the point that other cases would be left to languish” or cause us to give “short shrift .

. . to the decisionmaking process.” (Maj. opn., ante , at p. 55.) The separation of powers protects against not only those intrusions, but also against the insidious effects o f a mandatory deadline on a court’s management of its docket and the ability to devote its attention to the whole range of cases meriting timely justice. (See Engram , supra , 50 Cal.4th at p. 1146; Thurmond , supra , 66 Cal.2d at p. 839; accord, State ex rel

. Emerald People’s Util. v. Joseph (Or. 1982) 640 P.2d 1011, 1016

- 1018 (conc. opn. of Peterson, J.).) The constitutional violation is complete in the legislative intrusion on the judicial function of deciding when to hear and determine cases. (See Levin & Amsterdam, Legislative Control Over Judicial Rulemaking: A Problem in Constitutional Revision (1958) 107 U. Pa. L.Rev. 1, 31

- 32.) So a mandatory five

year deadline

— which is what the initiative provides, what the voters were told they were getting, an d what was enacted

— necessarily infringes on a court’s inherent authority. There is no requirement that the voters demonstrate “a broader intent to infringe on inherent judicial authority” for us to respect their choice (maj. opn., ante , at p. 54), and o ne strains to understand how they could have made their intended purpose any clearer here.24

the separation of powers. Indeed, that is precisely what Verio Healthcare, Inc. v. Superior Court (2016) 3 Cal.App.5th 1315 ( Verio ) held.
At issue in Verio were amend ments to two civil procedure statutes we had previously construed in Thurmond , supra , 66 Cal.2d 836 to be directory. ( Verio , supra , 3 Cal.App.5th at p. 1325

- 1326.) In 1968, one year after Thurmond , the Legislature amended each of those statutes to add a new provision stating that a continuance or extension of time requested by a party or attorney who is a member of the Legislature then in session “is mandatory,” unless the court determined that the continuance or extension of time would defeat or abridge a right to relief in specified proceedings. (Code Civ. Proc., §§ 595, 1054.1, subd. (b).) In contrast to the majority’s approach in this case, the Verio court recognized that the clearly mandatory provisions of the amended statutes rendered them distingu ishable from
the statutes we construed in Lorraine , Thurmond , and Engram . ( Verio , at pp. 1329

- 1330.) Precisely because the 1968 amendments “explicitly describe[d] the continuance or extension of time as ‘mandatory,’ ” the court held “that sections
595 an d 1054.1 are unconstitutional to the extent they purport to be mandatory.” ( Id . at p. 1330.) The majority holds out Verio as an example of a court interpreting a statute as directory, despite its mandatory phrasing. Verio does not even mildly support
the majority’s position. The Verio court “refused to give the statutes mandatory effect” (maj. opn., ante , at p. 48) for the simple reason that the amendments making the statutes mandatory had been struck down as unconstitutional. ( Verio , supra , 3 Cal.App.5 th at p. 1330.) The remainder of the statutes, though, could still be given effect in a manner consistent with our jurisprudence on severability and the statutory design. (See Legislature v. Eu (1991) 54 Cal.3d 492, 535.) The invalid mandatory provision s were set forth in a separate subdivision (see Code Civ. Proc., § 1054.1, subd. (b)) or a separate paragraph ( id ., § 595, 2d par.) and25

were grammatically severable. (See Verio , at p. 1325.) The invalid mandatory provisions were functionally severable, i n that their removal would not affect or disrupt the operation of either statute. And the court could be sure that the Legislature would have maintained the pre

- amended version of the statutes, had it foreseen the invalidation of the 1968 amendments, beca use “ ‘[t]he legislative policy of granting continuances of court proceedings so as not to interfere with the functions of the Legislature . . . has been the law since 1880.’ ” ( Verio , at p. 1326, quoting Thurmond , supra , 66 Cal.2d at p. 840.) These aspe cts of the case showcase why Verio did not interpret mandatory language as directory. It instead
invalidated the mandatory provisions. The remaining statutory text, excised of the unconstitutional provisions, was the same statutory text we had already co nstrued as directory in Thurmond . Consequently, Verio declared that those statutes “should continue to be treated as directory.” ( Verio , at p. 1330, italics added.) Ironically, it is the part of Verio that is on point

— the part declaring mandatory provi sions unconstitutional

— that the majority ignores. Instead the majority relies on the part of Verio that read directory language to be directory, but that part is of no assistance here. No one

— not the majority, not the Attorney General, not the interv ener

- proponents

— claims the five

- year deadline is somehow severable from the mandatory aspects of the initiative. (See Katyal & Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change (2015) 128 Harv. L.Rev. 2109, 2121, fn. 47 [“When a cour t uses the rewriting power, it is, in effect, implicitly assuming the outcome of the severability analysis and acting with less candor and transparency than a court that does the analysis explicitly”].) And nothing in the record suggests the voters would have preferred a directory interpretation of the five

- year deadline to its invalidation. To the contrary: Several statutes already offered what the majority calls “an exhortation to the parties and courts to handle cases as expeditiously as is consistent with the26

fair and principled administration of justice.” (Maj. opn., ante , at p. 55; see §§ 190.6, subds. (a), (c), 1239.1, subd. (a).) There is no reason to think the voters, when they enacted Proposition 66, wanted merely to pile on. As a sister stat e supreme court explained nearly a century ago, “[F]or us to merely hold the provisions of the act under consideration directory would afford poor consolation, for it was doubtless the intention of those sponsoring this measure to provide a method for a sp eedy disposition of such matters, and to hold the provisions of the measure merely directory would enable the courts to take as much time as they saw fit to dispose of the questions presented, which would be no improvement over the method provided by law a s it existed before this measure was initiated.” ( Long , supra , 251 P. at p. 490.) Litigants and policymakers are unlikely to discover much improvement

— or “benefit” (maj. opn., ante , at p. 44, fn. 28)

— in the majority’s implausible
construction of the f

ive

- year deadline, either. It would be exceptionally difficult, and potentially quite fraught, for the Judicial Council to implement whatever might allegedly remain of the five

- year time limit while preserving “the courts’ inherent authority over their do ckets.” ( Id . at p. 59.) So I agree with Justice Liu: The Judicial Council is under no compulsion to adopt rules or standards meant somehow to expedite judicial review of death penalty cases beyond those that implement the specific reforms enumerated in other parts of Proposition 66. (See §§ 1239.1, subds. (a), (b), 1509, subds. (a), (g), 1509.1, subd. (a).) As he points out, section 190.6, subdivision (d) “does not provide useful guidance for those charged with implementing Proposition 66” regarding th e acceleration of judicial review and therefore cannot “lawfully and practically guide the Judicial Council’s quasi

- legislative rulemaking.” (Conc. opn. of Liu, J., ante , at pp. 14

- 15.) To require more from the Judicial Council than rulemaking to impleme nt the specific reforms above would amount to a risky bet that some other entity will swoop in to27

enforce the separation of powers, which is a bedrock of our constitutional republic and a dividing line the courts are charged with policing. Either the five

- year deadline is unconstitutional (as I have argued) or it is of no legal effect (as Justice Liu contends). But any implication that the Judicial Council must also make rules aimed vaguely at accelerating the process, with no hint as to what such rules m ight be, brings to mind the guidance a European monarch is envisioned as offering to
John Adams

–– stepping into the shoes of George Washington as our second president

–– in the musical “Hamilton”: “Good luck!” (Miranda, Hamilton: An American Musical, a ct II, scene 10.) “Good luck” might be in order as well for those who contemplate a challenge to the constitutionality of other statutes and may now wonder whether this court will instead redraft laws to avoid “constitutional problems.” (Maj. opn.,

ante , at p. 49.) It is not judicial modesty that authorizes a court to distort the text of a statute in a way that subverts its purpose. Nor does judicial restraint justify a court deliberately reading a law to mean something other than what the voters

enacte d. When the majority says that it will construe statutes to be directory

— despite their “mandatory phrasing,” despite what “the voters were told,” and despite what “the voters intended” as the statute’s purpose (maj. opn., ante , at pp. 49, 53)

— the act becomes precisely the opposite of judicial modesty. The court instead substitutes its own preferences, without justification, for those embodied in legislation. (See Manning, The Nondelegation Doctrine as a Canon of Avoidance (2000) Sup. Ct. Rev. 223, 25 5

- 256.) And while it may sometimes be possible for the legislative branch to correct a mistaken judicial construction of a statute it had duly enacted, that’s an unlikely prospect here. Under the terms of the initiative, the newly minted five

- year “goal” just announced by the majority and given some degree of legal weight by it can now be overturned only by a vote of three

- fourths of the membership of each house of the Legislature, or by a whole new initiative.28

(See Voter Guide, supra , Prop. 66, § 20, p. 218.) Because, practically speaking, our word will be the last word, we really ought to fairly construe the law the voters actually enacted. When we construe Proposition 66, we find that nothing in the initiative or the record suggests that reasonable voters would have understood the initiative to enact merely a “guideline[]” or a “goal.” (Maj. opn., ante , at pp. 44, fn. 28, 52;
cf. Valencia , supra , 3 Cal.5th at p. 364 [refusing to adopt a permissible construction that would “be inconsistent with [the initiative]’s uncodified findings, declarations, purpose, and intent”].) Rather than redraft the initiative while casting aside its purpose, we should interpret the five

- year deadline in section 190.6 to mean what it says, and analyze its constitutionali ty fairly and fully. Having undertaken that task, I would invalidate those portions of section 190.6, subdivision (d) that purport to impose a deadline for completion of “the state appeal and the initial state habeas corpus review in capital cases” and to charge the Judicial Council with promulgating rules and standards to ensure the completion of such review “within the five

- year period provided in this subdivision.”
II.
The five

- year deadline is not Proposition 66’s only constitutional defect.
The majority also errs in upholding new section 1509.1, subdivision (a), which purports to vest the Court of Appeal with appellate jurisdiction in capital habeas corpus proceedings: “Either party may appeal the decision of a superior court on an initial petit ion under Section 1509 to the court of appeal.” Under our state Constitution, this court has “exclusive” appellate jurisdiction “ ‘in death penalty cases.’ ” ( Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 124 ( Thompson ).) The majority co ncedes this new provision constitutes a “significant departure” from existing practice governing appellate review of capital habeas29

corpus petitions. (Maj. opn., ante , at p. 21.) But it is more than that: It is also unconstitutional. Unlike the majorit y, I would read the constitutional grant of appellate jurisdiction to this court (Cal. Const., art. VI, § 11, subd. (a)) in conjunction with related constitutional provisions, the Legislature’s long

- standing interpretation of our appellate jurisdiction, th e purpose behind vesting this court with appellate jurisdiction in death penalty cases, and the virtually uniform practice of our sister states. When interpreted using our ordinary canons of construction, it is clear that our exclusive appellate jurisdict ion encompasses an appeal from any attempt to attack the death judgment, including an appeal from a capital habeas corpus proceeding. Like most states that have retained the death penalty, California has entrusted appellate jurisdiction in death penalty cases to the state court of last resort. Under our state Constitution, “[t]he Supreme Court has appellate jurisdiction when judgment of death has been pronounced.” (Cal. Const., art. VI, § 11, subd. (a).) Although this court generally has the po wer to transfer a case in its jurisdiction to the Court of Appeal (or to transfer a case from the Court of Appeal to itself), the Constitution explicitly withholds such authority when the case is “an appeal involving a judgment of death.” ( Id ., art. VI, § 12, subd. (d).) Certainly an appeal from a judgment granting or denying a habeas corpus petition attacking a death judgment is “an appeal involving a judgment of death.” ( Ibid .)
So it is the task of this court

–– and only this court

–– to exercise “ex clusive jurisdiction ‘in death penalty cases’ because of ‘the extreme nature of the penalty.’ ” ( Thompson , supra , 25 Cal.4th at p. 124, quoting Cal. Const. Revision Com., Proposed Revision (1966) p. 91.) Our concern over the gravity of the death penalty is widely shared by our sister jurisdictions. The high court has pointed out that a system providing for judicial review “in a court with statewide jurisdiction

. . . promote[s] the evenhanded, rational, and consistent imposition of death30

sentences under law.” ( Jurek v. Texas (1976) 428 U.S. 262, 276; accord, State v. Ramirez (Ariz. 1994) 871 P.2d 237, 243; People v. Gaines (Ill. 1984) 473 N.E.2d 868, 878; see generally Uelman, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Cour ts in an Era of Judicial Politicization (1997) 72 Notre Dame L.Rev. 1133, 1138 [“The traditional answer, of course, is that consistency in administering the ultimate punishment demands final review by the same body of judges in every case”].) An appeal i n a death penalty case encompasses more than the automatic appeal. It includes, for instance, an appeal from a petition for writ of error coram nobis , an appeal from a petition for writ of habeas corpus, or an appeal from any other extraordinary writ atta cking the judgment. Even if the details governing the procedure for these proceedings may vary, the need for evenhanded, rational, and consistent imposition of the death penalty does not: It is the same regardless of which means is used to attack the jud gment. (See State v. Fourth Dist. Court of Appeal (Fla. 1997) 697 So.2d 70, 71 [“Collateral proceedings in death penalty cases are essentially attacks on the imposition of the death penalty. Because this Court has jurisdiction over death penalty cases, it is logical that such attacks be directed to this Court.”]; People v. Gaines , supra , 473 N.E.2d at p. 879 [“Statewide review, in this court, of post

- conviction cases involving the death penalty will further the governmental interest in uniform and expediti ous review of death sentences”]; State v. Niccum (N.C. 1977) 238 S.E.2d 141, 143

- 144 [because an appeal from a judgment that “ ‘includes a sentence of death or imprisonment for life’ ” lies directly to the supreme court, it “logically” follows that an appe al from a habeas corpus judgment involving a sentence of death or life imprisonment lies to the supreme court].) Which is precisely how the Legislature, for at least the past 90 years, has interpreted the Constitution’s exclusive grant of appellate juris diction in capital31

cases. In 1927, the Legislature enacted former section 1506, which then provided that “[a]n appeal may be taken to the district court of appeal by the [P]eople from a final order of a superior court made upon the return of a writ of hab eas corpus discharging a defendant after his conviction, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where judgment of death has been rendered , and in such cases to the supreme court . . . .” (Stats. 1927, ch. 628, § 1, p. 1061, italics added.) (The current version still includes an identical provision governing appeals in “criminal cases where judgment of death has been rendered.” (§ 1506.)) The italicized language plainly purported to con strue the 1904 predecessor to article VI, section 11, subdivision (a) of the Constitution, since it repeated that key language verbatim: “The Supreme Court shall have appellate jurisdiction on appeal from the superior courts . . . on questions of law alon e, in all criminal cases where judgment of death has
been rendered . . . .” (Cal. Const., former art. VI, § 4, as amended Nov. 8, 1904, italics added.) None of this is happenstance. We noted long ago the “pains that were there taken [by the Legislature ] to limit the instances in which an appeal from the superior court in habeas corpus proceedings would be allowed” and acknowledged that “[t]he power of the Legislature to enact section 1506 has never been successfully challenged.” ( In re Flodstrom (1955) 45 Cal.2d 307, 310.) Even earlier, in In re Alpine (1928) 203 Cal. 731, we recognized that “[s]ection 1506 provided for the first time in our legislative history that an appeal may be taken from the order of a superior court discharging a defendant after conviction to the district court of appeal, except in cases where judgment of death has been rendered, and in such cases to the supreme court.” ( Alpine , at p. 745; see id . at pp. 745

- 746 [“Whatever doubt that existed [in 1913], as to whether a habeas cor pus proceeding may fairly be said to be included in the terms of the constitution . . .32

has been removed by the unmistakable language of the statute that it is so included within the constitutional language. And we can see no objection on constitutional
g rounds against the power of the legislature to so provide.”]; In re Ketchel (1968) 68 Cal.2d 397, 399.) One year after former section 1506 was enacted, former article VI, section 4 of the Constitution was amended. But the amendment left this court’s app ellate jurisdiction unchanged: “in all criminal cases where judgment of death has been
rendered .” (Cal. Const., former art. VI, § 4, as amended Nov. 6, 1928, italics added; see id ., former art. VI, § 4b [granting appellate jurisdiction to the Court of Ap peal “except where judgment of death has been rendered ” (italics added)].) These provisions were amended again in 1966, this time to read as they do today, but the amendment “did not alter the scope of this court’s exclusive jurisdiction in capital cases. ” ( Thompson , supra , 25 Cal.4th at p. 124.) As even intervener

- proponents acknowledge, section 1506 deems the “final order of a superior court made upon the return of a writ of habeas corpus discharging a [capital] defendant or otherwise granting all or any part of the relief sought” to be a “criminal case[] where judgment of death has been rendered”

— and, accordingly, one that can be appealed only to this court. 11 The Legislature’s

11 The Legislature has characterized a habeas corpus proceeding as a “Special Proceeding[] of a Criminal Nature.” (Pen. Code, pt. 2, tit. 12, ch. 1, § 1473 et seq .) Neither the parties nor the majority explains why the Legislature’s characterization of capital habeas corpus proceedings as “criminal” should not be determinative for purposes of defining this court’s exclusive appellate jurisdiction under article VI, section 11. (Cf. In re Scott (2003) 29 Cal.4th 783, 815 [a habeas corpus proceeding is not “a criminal case” within the meaning of Cal. Const., art. I, § 15’s bar on persons being compelled in a criminal case to be a witness against themselves because a habeas corpus proceeding “cannot result in added punishment for the petitioner”]; id . at p. 815, fn. 6 [“We need not, and do not, decide whether a habeas corpus proceeding is civil or criminal for other purposes”].)33

construction of the constitutional provisions governing this court’s app ellate jurisdiction is thus fully consistent with the contextual reading of article VI, sections 11 and 12, above. It is also consistent with a principle clearly reflected in the Constitution

–– and supported by its history

–– that this court has mandator y, exclusive appellate jurisdiction in “death penalty cases.” (Cal. Const. Revision Com., Speech Materials (Apr. 18, 1966), p. 13 [“The proposed article makes the appellate jurisdiction of the Supreme Court discretionary, except for death penalty cases”]; Cal. Const. Revision Com., Proposed Revision (Feb. 1966) p. 81 [“The proposed Article VI makes the appellate jurisdiction of the Supreme Court discretionary, except in death penalty cases”]; id . at p. 91 [“except in death penalty cases where, because of t he extreme nature of the penalty, jurisdiction was given to the Supreme Court”]; Cal. Const. Revision Com., Progress Report to the State Legislature (Oct. 1965) p. 37 [“An exception to full discretionary jurisdiction will be made by retaining Supreme Court jurisdiction of appeals in death penalty cases”]; Transactions of the Commonwealth Club of Cal., Ballot Proposals for Nov. 1966 (Oct. 3, 1966; vol. 42, pt. 2) The Commonwealth p. 324 [describing the proposed constitutional amendment as “eliminating direct appeal to the Supreme Court except in death penalty cases”]; 12 see also Voter Guide , Gen. Elec. (Nov. 6, 1984), analysis of Prop. 32 by Legis. Analyst, p. 28 [“if this measure is approved by voters, the Supreme Court would continue to be responsible for he aring death penalty appeals, and it would not be able to transfer these cases to a court of appeal for review”]; Legis. Analyst, Analysis of Sen. Const. Amend. No. 29 (as

12 The Commonwealth Club’s publication d eclared that “voters increasingly have turned to the Commonwealth Club Reports, such as those contained herein, for aid in appraising the ballot amendments” (Transactions of the Commonwealth Club of Cal., supra , at the frontispiece), and we have ourselves cited on occasion to the Commonwealth Club’s discussion of legislation as evidence of its intended purpose and scope. (E.g., Leuschen v. Small Claims Court (1923) 191 Cal. 133, 136.)34

amended Apr. 10, 1984) p. 2 [“its provisions do not apply to appeals involving the
de ath penalty. These cases currently must be reviewed directly by the Supreme Court, rather than being appealed first to the courts of appeal.”]; Assem. Office of Research, 3d reading analysis of Sen. Const. Amend. No. 29 (as amended Apr. 10, 1984) p. 2 [th e transfer provisions “[w]ould not apply to an appeal involving a death penalty judgment”]; see also Grodin et al., The California State Constitution: A Reference Guide (1993) p. 126 [“Subsection (d) makes clear that the supreme court alone has responsibi lity . . . for deciding death penalty cases”] .) This court has routinely understood the term “death penalty cases” to include capital habeas corpus proceedings. (E.g., In re Bacigalupo (2012) 55 Cal.4th 312, 314; In re Morgan (2010) 50 Cal.4th 932, 937

- 9 38; In re Carpenter (1995) 9 Cal.4th 634, 659.) Section 1506 was enacted against the backdrop of these constitutional constraints. It carries “ ‘a “strong presumption in favor of the Legislature’s interpretation of a provision of the Constitution,” ’ ” a nd its “ ‘focused legislative judgment on the question enjoys significant weight and deference by the courts.’ ” ( Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 192

- 193.) Indeed, around the time the Legislature enacted section 1506, this court had acknowledged that “the contemporaneous and long continued construction thereof by the legislature is entitled to great deference, and may be supposed to reflect the views of policy and modes of reasoning which prevailed among the framers of the
C onstitution.” ( People v. S. Pac. Co. (1930) 209 Cal. 578, 595.) Yet the majority fails to accord the Legislature’s long

- standing interpretation due weight

— or any weight at all. The majority states only that section 1509.1 effects “an implied repeal” o f section 1506. (Maj. opn., ante , at p. 28.) This euphemism significantly underplays the stakes here. Only one of these provisions can be constitutional. Either the Supreme Court has appellate jurisdiction over capital habeas corpus35

proceedings (in whi ch case section 1506 is constitutional, and new section 1509.1 is not), or the Court of Appeal has appellate jurisdiction over capital habeas corpus proceedings (in which case new section 1509.1 is constitutional, and section 1506 is not). The majority ch ooses the latter option

— and thus upends 90 years of settled law and belatedly declares that we were without jurisdiction “in its most fundamental sense” (maj. opn., ante , at p. 15) to hear the People’s appeal in In re Carpenter , supra , 9 Cal.4th 634 and any other direct appeal from the superior court in a capital habeas corpus proceeding. Even worse, the reasons provided by the majority fail to justify this sudden about

- face. It is the majority’s primary contention that article VI, section 11 of the
Ca lifornia Constitution is limited to an appeal from the “case in which [the death] judgment was rendered.” (Maj. opn., ante , at p. 24.) But the majority cites nothing to support this theory

–– unless one counts a single sentence in a Judicial Council repo rt that postdated the election at which article VI, section 11 was adopted. (See Valencia , supra , 3 Cal.5th at p. 364, fn. 5 [“ ‘We cannot presume that the electorate as a whole was aware of statements made . . . in a magazine article published after the election”].) Even so, the sentence

— “Under Section 11, the direct appellate jurisdiction of the Supreme Court is restricted to those cases in which judgment of death has been pronounced” (Judicial Council of Cal., Ann. Rep. (1967) pt. 1, ch. 3, p. 76)

— does not support the majority’s idiosyncratic reading of the constitutional provision’s actual text. What is important under article VI, section 11 is not that the appeal from a proceeding attacking the death judgment itself be an appeal from the judgment of death, but that a judgment of death has actually been pronounced. Over a century ago, we explained that our “appellate jurisdiction ‘in all criminal cases where judgment of
death has been rendered ’ ” excluded an appeal from an order, “made before judg ment,” setting aside a charge of capital murder. ( People v. White (1911) 16136

Cal. 310, 310.) Although the information charged a crime punishable by death, we explained that “neither judgment of death nor any other judgment has yet been
rendered .” ( Ibid

. , italics added; cf. Utah Code Ann. § 78A

- 3

- 102(3)(i) [“The Supreme Court has appellate jurisdiction . . . over . . . appeals from the district court involving a conviction or charge of a first degree or capital felony” (italics added)].) So where judgment of death has been pronounced

— and the appeal challenges that judgment

— appellate jurisdiction resides in this court. (Cf. Thompson , supra , 25 Cal.4th at p. 122 [“our exclusive jurisdiction over death penalty appeals” did not include an appeal where “[p ]laintiffs challenged not the legality of that [death] judgment but the time at which Thompson’s spiritual adviser of choice had to leave him before the execution”].) Indeed, this court has already declared that “appellate jurisdiction in criminal cases w here judgment of death has been rendered” extends at least to “proceedings which attack such a judgment by motion to vacate or petition for the writ of error coram nobis .” ( People v. Shorts (1948) 32 Cal.2d 502, 511.) Given the pervasive uncertainty as

t o whether certain defects “should be raised by motion to vacate the judgment or by application for habeas corpus” ( People v. Thomas (1959) 52 Cal.2d 521, 528) or whether “review should be by means of a writ of error coram nobis or through a
writ of habeas corpus” ( People v. Kirk (1946) 76 Cal.App.2d 496, 498)

— and this court’s persistent readiness to deem one type of petition to be the other, when necessary (e.g., People v. Stanworth (1974) 11 Cal.3d 588, 594, fn. 5; People v. Enriquez (1967) 65 Cal.2d 746 , 750 [“It matters not whether this petition be treated as a petition for habeas corpus or one in coram nobis ”])

— it seems exceedingly unlikely that a reasonable voter understood this elusive distinction to
have jurisdictional significance in capital case s. As we have previously noted, a challenge to a criminal conviction by means of a petition for writ of habeas corpus37

can still qualify as “a continuation of that earlier action.” ( Maas v. Superior Court (2016) 1 Cal.5th 962, 979; see Yokley v. Superior Court (1980) 108 Cal.App.3d 622, 628 [“the habeas corpus proceeding is a continuation of the original trial”].) I see no reason why the electorate would have crafted a different method of appellate review for habeas corpus proceedings

–– and the majority offers none. I respectfully, but strongly, disagree with the majority that an interpretation of our appellate jurisdiction incorporating the full range of relevant considerations

–– including functional ones

–– would somehow be “anomalous.” (Maj. opn.,

a nte , at p. 27.) It does matter whether the Court of Appeal has jurisdiction to review a superior court’s capital habeas corpus ruling on appeal, rather than review that same ruling when the capital inmate files a new original petition there.
Consider the purpose underlying our exclusive appellate jurisdiction in death penalty cases, and the difference between review by appeal and review by a new original writ petition. A system of direct review to the state court of last resort “promote[s] the evenhanded , rational, and consistent imposition of death sentences under law.” ( Jurek v. Texas , supra , 428 U.S. at p. 276.) A system in which an appeal can be taken to the intermediate appellate court, by contrast, creates uncertainty. It allows for the possibili ty of conflicting rulings on a matter of ultimate concern: life, or death. An appeal triggers the right to present oral argument and an entitlement to a written opinion with reasons stated. ( People v.
Medina (1972) 6 Cal.3d 484, 489

- 490.) A petition fo r an extraordinary writ (such as a petition for writ of habeas corpus), on the other hand, can be summarily denied without oral argument or a written statement of reasons. (See id . at p. 490.) Indeed, summary denial of a habeas corpus petition or other p etition for an extraordinary writ does not establish law of the case or have any res judicata effect in future proceedings. ( Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn.38

6.) Nor does it have any precedential effect. ( Thompson , supra , 25 Cal.4 th at p. 125.) That’s why virtually every one of our death penalty sister states requires that appeals from the death judgment as well as appeals from all postconviction proceedings attacking that judgment go directly to the state’s highest court. 13 Th e laws of these other states do not control here. But the approach to the review of death penalty cases in our sister states is near uniform. And this near

- uniform practice also happens to conform to the approach endorsed by the American Bar
Association. (ABA Stds. for Post Conviction Remedies, std. 22

- 5.1 [“Appellate review should be available through the same courts authorized to hear appeals from judgments of conviction”].) All this should cause us to wonder precisely
what it is about the California Constitution that demonstrates an intent or purpose

13 Ariz. Rev. Stat. § 13

- 755(A); Ariz. R. Crim. P. 31.4(b)(2); Ark. Sup. Ct. R. 1

- 2(a)(2); Ward v. State (Ark. 2002) 84 S.W.3d 863, 864; Colo. Rev. Stat. §§ 16

- 12

- 206(3), 18

- 1.3

- 1201(6)(a); Fla. Const., art. V, § 3(b)(1); State v. Fourth Dist. Court of Appeal , supra , 697 So.2d at p. 71; Ga. Const., art. VI, § VI, par. III( 4), (8); Ga. Code Ann. §§ 15

- 3

- 3.1(a)(2), 17

- 10

- 35(b); Idaho Code §§ 19

- 2719(6), 19

- 2827(a), (b); Ill. Const., art. VI, § 4(b); People v. Gaines , supra , 473 N.E.2d at p. 878; Ind. Const., art. VII, § 4; Ind. R. App. P. 4(A)(1)(a); Ind. R. Post

- Conviction R emedies § 7; Kan. Stat. Ann. § 21

- 6619(a); Zimmer v. State (Kan. 1979) 477 P.2d 971, 974; Ky. Const., § 110(2)(b); Cardine v. Commonwealth (Ky. 2003) 102 S.W.3d 927, 928; Miss. Code Ann. §§ 9

- 4

- 3(1), 99

- 39

- 25(1), 99

- 39

- 28; Miss. R. App. P. 22(c)(8); Mo. Co nst., art. V., § 3; Barton v. State (Mo. 2016) 486 S.W.3d 332, 336; Neb. Const., art. V, § 2; Ex parte Tail (Neb. 1944) 14 N.W.2d 840, 844; N.M. Const., art. VI, § 2; N.M. Stat. Ann. § 34

- 5

- 8(A)(3), (4); N.C. Gen. Stat. § 7A

- 27(a)(1); State v. Niccum , supr a , 238 S.E.2d at p. 144; 42 Pa. Cons. Stat. §§ 9546(d), 9711(h)(1); S.C. Code Ann. § 14

- 8

- 200(b)(1); State ex rel. Riley v. Martin (S.C. 1980) 262 S.E.2d 404, 406; Tex. Const., art. V, § 5(b); Tex. Crim. Proc. Code Ann. art. 11.071, § (4)(a); Utah Code §§ 78A

- 3

- 102(3)(i), 78A

- 4

- 103(2)(f); Va. Code Ann. § 17.1

- 406(B); Wash. Rev. Code. § 10.95.100; Wash. R. App. P. 16.3(b), (c).39

to deviate from the general path. 14 Indeed, given this court’s “unique role in overseeing the imposition of capital punishment in this state” ( In re Reno (2012) 55 Cal.4th 428, 522), there should be some signal that the voters who enacted these constitutional provisions contemplated a deviation from the overwhelmingly common practice if the majority’s view were the correct one, and one would expect some explanation from the majority as to why. But none ap pears. What becomes apparent instead is the risk that the majority’s narrow construction of article VI, section 11 of the California Constitution will eviscerate the provision’s purpose of promoting “the evenhanded, rational, and consistent imposition of death sentences under law.” ( Jurek v. Texas , supra , 428 U.S. at p. 276.) Under California law, a capital prisoner may challenge the validity of the statute under which the prisoner was convicted or sentenced “at any time”

— not just in the automatic app eal, but also in the initial petition for writ of habeas corpus. ( In re Clark (1993) 5 Cal.4th 750, 765, fn. 4; see id . at p. 798; Pen. Code, § 1509, subd. (d) [limiting the claims that may be raised in a successive petition].) The majority leaves intact this court’s exclusive appellate jurisdiction when those claims are presented in the automatic appeal, and rightly so. Such claims go to the heart of our concerns over the evenhanded, rational, and consistent imposition of the death penalty. But that pu rpose would be completely undermined if (as the majority now holds) those same claims go instead to the Court of Appeal when a party is appealing from a capital habeas corpus proceeding. (See State v. Fourth Dist. Court of Appeal , supra , 697 So.2d at p. 7 1; People v. Gaines , supra , 473

14 The two exceptions

— Ohio and Oregon

— define their high court’s appellate jurisdiction more narrowly than we do. (See Ohio Cons t., art. IV, § 2(B)(2)(c) [“direct appeals from the courts of common pleas or other courts of record inferior to the court of appeals as a matter of right in cases in which the death penalty has been imposed”]; Or. Rev. Stat. § 138.012(1) [“[t]he judgment of conviction and sentence of death entered under [the death penalty statute] is subject to automatic and direct review by the Supreme Court”].)40

N.E.2d at p. 879; State v. Niccum , supra , 238 S.E.2d at pp. 143

- 144.) Such a scheme would multiply the risk of conflicting rulings

— even though the prospect of conflicting rulings on these issues was precisely the evil at which article VI, section 11 was directed. It is simply not reasonable to interpret the constitutional provision to countenance such a result. Which is why I would find section 1509.1 unconstitutional insofar as it purports to direct an appeal to the Cou rt of Appeal from a superior court ruling on a capital habeas corpus petition. The remaining question is whether the provision barring the use of a “successive petition” (read “new petition” (maj. opn., ante , at pp. 21

- 22, fn. 14)) “as a means of reviewi ng a denial of habeas relief” (§ 1509.1, subd. (a)) is severable or was instead dependent on the assumption that review would be available by appeal. Our analysis properly begins by taking account of Proposition 66’s severability clause (see California Re development Assn. v.
Matosantos (2011) 53 Cal.4th 231, 270 ( Matosantos )), which provides: “If any provision of this act, or any part of any provision, or its application to any person or circumstance is for any reason held to be invalid or unconstitutiona l, the remaining provisions and applications which can be given effect without the invalid or unconstitutional provision or application shall not be affected, but shall remain in full force and effect, and to this end the provisions of this act are
severab le.” (Voter Guide, supra , Prop. 66, § 21, p. 218.) Although a severability clause establishes a presumption in favor of severance, this court also considers whether the invalid provision is grammatically, functionally, and volitionally severable. ( Matos antos , at pp. 270

- 271.) An invalid provision can be severed from the remainder of the enactment “if, and only if, it is ‘grammatically, functionally and volitionally separable.’ ” ( Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 613.)41

Severability is not possible here under any reasonable understanding of what’s meant by grammatically, functionally, and volitionally. Nothing in the text of Proposition 66, its structure, or its history reveals a purpose to preclud e appellate courts altogether from reviewing a sentencing court’s ruling on a habeas corpus petition. Just the opposite: the initiative proposed merely to shift the means of review from the filing of a new petition in a higher court to an appeal to a hig her court. “Volitional” severability turns on whether “the remainder of the measure probably would have been adopted by the people even if they had foreseen the success of petitioners’ . . . challenge.” ( Raven v. Deukmejian (1990) 52 Cal.3d 336, 356; see Matosantos , supra , 53 Cal.4th 231, 271.) The switch from one avenue (filing of a new petition) to the other (appeal) plainly was dependent on the assumption that the latter offered an available means of review. (See Gerken v. Fair Political Practices Co m. (1993) 6 Cal.4th 707, 718.) Had reasonable voters foreseen that the appeal mechanism would be invalidated, one cannot say “ ‘ with confidence ’ ” that they would have adopted the ban on new petitions as a means of review. ( Id . at p. 714.) So I would in validate section 1509.1 in its entirety.
III.
The bait

- and

- switch undertaken by the proponents of Proposition 66

— and countenanced by the majority

— will do nothing but breed cynicism in the electorate and supply further kindling to those who doubt the ef ficacy and workability of constitutional democracy. As an inducement to support this initiative, voters were promised that state court review of death penalty judgments could and would be completed within five years. That promise, as the majority
concede s, was a sham. But the way to prevent similar swindles in the future is to be clear about what section 190.6, subdivision (d) says and why it is unconstitutional. What the majority offers instead

— a “saving construction” to a42

clearly unconstitutional st atute (maj. opn., ante , at p. 57, fn. 33), accompanied by a “caution” against presenting the voters with “statutory language that is inconsistent with constitutional norms” ( ibid .)

— ill

- serves the constitutional principles at stake, hinders forthright del iberation, and encourages initiative proponents to repeat the bait

- and

- switch in the future. It is the voters’ job to decide whether to enact laws by initiative. It is our job to interpret and give effect to those duly enacted laws when called upon to d o so, but also to uphold the supreme law of the land

— our state and federal
constitutions

— when the challenged law transgresses those founding documents. When the courts treat voters as adults (i.e., listen to what they are saying and take seriously wha t they are trying to accomplish), then we will have earned their respect

— respect that is sorely needed on those rare occasions when we must explain why a law duly enacted by the voters, but contrary to the Constitution, cannot take effect. (See Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 930 [“ the initiative power is strongest when courts give effect to the voters’ formally expressed intent”].) This is one such occasion. What was presented to the voters in Proposition
66 was a mandatory five

- year deadline for resolution of the state court appeal and the initial habeas corpus petition for capital inmates. That’s what the voters enacted. We know the resulting deadline is mandatory from its text, its structure, the deadline’s description in the ballot materials, statements by the initiative’s proponents, and general media coverage of the Proposition 66 campaign. And our established precedent underscores why we are not free to construe a deadline as directory where, as here, th e enacting body “clearly expresses a contrary intent.” ( People v. Allen , supra , 42 Cal.4th at p. 102; see Kabran , supra , 2 Cal.5th at p. 343 [“The question is ultimately one of legislative intent”]; Garrison , supra , 32 Cal.2d at p. 435 [statute will be co nstrued as mandatory where “that result is43

expressly provided or otherwise clearly intended”].) When we foist a directory interpretation with potentially vague and unspecified consequences on a provision that cannot reasonably support it, we impair the ca ndid public deliberation that makes democracy effective. A mandatory deadline, as all the parties agree, is not constitutional. Because that is precisely what the voters enacted, we must be equally clear and invalidate it. (See Valencia , supra , 3 Cal .5th at p. 386 (conc. opn. of Kruger, J.) [“In interpreting a voter initiative, we are bound to respect both the choices the voters have made and the limits of those choices”].) I therefore cannot join the majority in upholding some newly manufactured ver sion of section 190.6, subdivision (d). When we twist the words of an initiative and ignore its clear purpose under the guise of “saving” it from being declared unconstitutional, then we are merely offering a pacifier as a substitute for a law the voters enacted, and encouraging initiative proponents to deceive voters about the actual effectiveness of a proposed law. (See Valencia , at p. 374 [“adopting the construction . . . as to the scope of a phrase in a measure without notice to the voters, not mentio ned by
the . . . Legislative Analyst, and contrary to the stated purposes and assurances described in the measure’s own preamble, would not protect the voters’ right to directly enact laws but could very likely encourage the subversion and manipulation of that democratic right ” (italics added)].) Nor can I join the majority in upholding section 1509.1. With respect, I dissent from those parts of the judgment.
C UÉLLAR , J. I C ONCUR : I KOLA , J.*

_______________________ * Associate Justice of the Cour t of Appeal, Fourth Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name o f Opinion Briggs v. Edmund G. Brown, Jr.

__________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding XXX Review Granted Rehearing Granted

______________________________________ ____________________________________________ Opinion No. S238309 Date Filed: August 24, 2017

__________________________________________________________________________________ Court: County: Judge:

________________________________________________________ __________________________ Counsel: Orrick, Herrington & Sutcliffe, Christina Von der Ahe Rayburn and Lillian Jennifer Mao for Petitioner. Michael J. Hersek for Habeas Corpus Resource Center as Amicus Curiae on behalf of Petitioner. Sanger Swysen & Dun kle, Robert M. Sanger, Stephen K. Dunkle; Clarke Johnston Thorp & Rice, Thomas H. Speedy Rice; Law Office of Melissa Bobrow and Melissa Bobrow for California Attorneys for Criminal Justice and Death Penalty Focus as Amici Curiae on behalf of Petitioner.

H ilary Potashner, Federal Public Defender (Central District) and Heather Williams, Federal Public Defender (Eastern District) for Offices of the Federal Public Defenders as Amicus Curiae on behalf of Petitioner.
Gibson, Dunn & Crutcher, Matthew S. Kahn, Ke vin Yeh, Ryan P. McGinley

- Stempel and Theane Evangelis for Constitutional Law Amici as Amicus Curiae on behalf of Petitioner. O’Melveny & Myers, Brett J. Williamson, Anne M. Steinberg, Alix R. Sandman, Matthew T. Kline and Susannah K. Howard for The Innoc ence Network, American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California and American Civil Liberties Union of San Diego and Imperial Counties as Amici Curiae on behalf of Petitioner. Kathleen A. Kenealy, Acting Attorney General, Xavier Becerra, Attorney General, Douglas J. Woods, Assistant Attorney General, Marc A. LeForestier and Jose A. Zelidon

- Zepeda, Deputy Attorneys General, for Respondents. Michele Hanisee, Ivy B. Fitzpatrick; Joe Brandon; Steven J. Walter; Cyril Yu; Maeve Fox; Michael A. Caves; Andrew Soloman; Matt De Moura; Karen Jensen; and Robert Maddock for Association of Deputy District Attorneys for Los Angeles County, Riverside County Deputy District Attorney Association, San Diego County Dep uty District Attorneys Association, Association of Orange County Deputy District Attorneys, Ventura County Prosecutor’s Association, Kern County Prosecutors Association, Sacramento County Deputy District Attorneys Association, Yolo County Deputy District A ttorneys Association, Solano County Association of Deputy District Attorneys and Sonoma County Prosecutors’ Association as Amici Curiae on behalf of Respondents.Page 2

– S238309

– counsel continued

Counsel: David A. Sanders, Daniel M. Lindsay and J ustin C. Delacruz for California Correctional Peace Officers Association as Amicus Curiae on behalf of Respondents. Stephen M. Wagstaffe, Mark Zahner and Frank C. Meyer IV for California District Attorneys Association as Amicus Curiae on behalf of Respond ents.

Nina Salarno Besselman for Crime Victims United of California as Amicus Curiae on behalf of Respondents. Hayes & Ortega, Dennis J. Hayes and Michelle C. Hribar for Los Angeles County Professional Peace Officers Association as Amicus Curiae on behal f of Respondents. Tony Rackauckas, District Attorney (Orange) and Holly M. Woesner, Deputy District Attorney, for Orange County District Attorney as Amicus Curiae on behalf of Respondents. Bell, McAndrews & Hiltachk, Charles H. Bell, Jr., Terry J. Martin ; Criminal Justice Legal Foundation, Kent S. Scheidegger and Kymberlee C. Stapleton for Intervener Mastagni Holstedt, David P. Mastagni, David E. Mastagni and Isaac S. Stevens for Peace Officers Research Association of California as Amicus Curiae.

The La w Offices of Brooks Ellison and Patrick J. Whalen for California Attorneys, Administrative Law Judges and Hearing Officers in State Employment as Amici Curiae.Counsel who argued in Supreme Court (not intended for publication with opinion):

Ch ristina Von der Ahe Rayburn Orrick, Herrington & Sutcliffe 2050 Main Street, Suite 1100 Irvine, CA 92614 (949) 567

- 6700

Jose A. Zeli d on

- Zepeda Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

- 7004 (415) 703

- 5781

Kent S. Scheidegger Criminal Justice Legal Foundation 2131 L Street Sacramento, CA 95816 (916) 446

- 0345