SEE CONCURRING 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 enforcement 

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, and 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 sufficient public importance to justify the exercise of our original 
2

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 than 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 differently 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 dockets 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 

protracted 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 certified 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 

vice-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 the 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 categories: (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 Habeas 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, post.)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 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.” (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, subdivision (b), an existing provision, sets a seven-month 

limit on the filing of the opening brief in a capital appeal, 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 means 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, 242 

(Brosnahan), and Amador Valley Joint Union High Sch. Dist. v. State Bd. of 

Equalization (1978) 22 Cal.3d 208, 220.)

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 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 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 appointed 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 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 

 

4 See Supreme Court Policies Regarding Cases Arising From Judgments of 

Death, policy 3, standards governing filing of habeas corpus petitions and 

compensation of counsel in relation to such petitions, originally adopted effective 

June 6, 1989.
5

sentence 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).) The superior court is made responsible for appointing counsel 

to represent indigent prisoners in capital cases. (§ 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 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 sentence.” (§ 1509, subd. (d).)5 Habeas corpus proceedings

“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 decision.” 

(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 outside 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 claim 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 obtain 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 habeas 

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, 

subd. (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 Administration of the 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 

designated for execution of the death penalty after an execution date has been 
7

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 Administrative 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 requirements. (§ 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 

seq.). (§ 3604.3, subd. (b).)

C. The 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 the 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, § 68661.1, 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 reasons 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 appellate 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 might 

arise from the measure in the future. (Raven v. Deukmejian, supra, 52 Cal.3d at 

pp. 340-341.) 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 based 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 maintain 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, section 1 of the California Constitution, “[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 powers of initiative and 

referendum.” “The initiative is the power of the electors to propose statutes and 

amendments to the Constitution and to adopt or reject them.” (Id., art. II, § 8, 

subd. (a).) We have declared it “our solemn duty to jealously guard the precious 

initiative power, and to resolve any reasonable 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 the 

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 declaration 
10

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-subject Claim

“An 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 area 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 single-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 Political Practices Com. v. 

Superior Court (1979) 25 Cal.3d 33, 41 [upholding 1974 Political 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 Justice 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 common 
11

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 restrict . . . 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 comprehensive 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 provisions 

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 

convictions 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) plea 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

(1985) 39 Cal.3d 765, 768.
12

The Brosnahan court found it “readily apparent” that these provisions 

shared “a common concern, ‘general object’ or ‘general subject,’ promoting the 

rights of actual 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 were 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 victims, 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 trial; (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 

cases; 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 single 
13

subject” being “promotion of the rights of actual and potential crime victims.” 

(Raven, at p. 347)9

Manduley v. Superior Court (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 not 

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 some 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 offenders 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 provision] 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 reviewing 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 

victims. (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 crime” (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 execution 
15

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 executions 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 view of Proposition 66’s 

purpose, the Habeas Corpus Resource Center reforms would qualify as reasonably 

germane, given that the center is directly involved in the postconviction 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: “The 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 

jurisdiction, 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 decide 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 corpus 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 petitions in capital cases are filed with this court. That, however, is not a 

jurisdictional requirement. Article VI, section 10 confers jurisdiction on the 

superior courts and courts of appeal to entertain such petitions as well.

Petitioner contends Proposition 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, subdivision (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 Court

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 inconsistent with the constitutional grant of original habeas corpus jurisdiction 
17

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. Revision 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. (1967) pt. 1, ch. 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.” 

(Commission Report, supra, at p. 90, italics added; quoted in Griggs v. Superior 

Court (1976) 16 Cal.3d 341, 349 (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] jurisdiction 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, pt. 1, ch. 

 

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 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. 

A petition filed in or transferred to the court which imposed the sentence 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 Griggs, supra, 16 Cal.3d at pp. 349-350 (conc. & 

dis. opn. of McComb, J.).)

We have recognized that “[b]y removing ‘unnecessary’ provisions from 

article VI, and allowing those matters to be regulated by statute, the commission’s 

revisions of article VI effectively 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 corpus 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 Legislature. (Legislature v. 

Deukmejian, supra, 34 Cal.3d at p. 674.)

Contrary to petitioner’s argument, section 1509 actually preserves 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 determinations. “[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, italics 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 

county 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 petitioner 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 

unconstitutionally 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 counsel 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 

posttrial 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 appellate 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 over 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 contends 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 

ordinarily 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 & Rehabilitation, 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 execution. (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 been 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 statutes 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. Section 3604.1, subdivision (c) modifies 

this procedure in one respect: it precludes the transfer of habeas corpus claims 

regarding execution methods to a superior 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 execution 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 1509 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 other than the sentencing court.

14 Section 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 ruling. (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. Instead, review is obtained 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 review 

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 cannot 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 Robbins (1998) 18 

Cal.4th 770, 788, fn. 9; Clark, at pp. 769-770.)
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 court 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, section 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 

judgment 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 shortly 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, 1928.) In the 1966 

constitutional revision, the reference to “criminal cases” was deleted when the 

exclusive jurisdiction provision was transferred 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 [did] not fall within this court’s exclusive jurisdiction.” 

(Ibid.) Thompson’s description of our exclusive jurisdiction as 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 jurisdiction of the 

Supreme Court is restricted to those cases in which judgment of death has been 

pronounced.” (Council Report., supra, pt. 1, ch. 3, p. 76.) In a number of 

decisions, we have made it plain that a habeas corpus proceeding is not a part of 

the criminal 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 We 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 either category.” (Scott, supra, 29 Cal.4th at p. 815, fn. 

6.)
25

proceeding “is not itself a criminal case, and it cannot 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 Court (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.”

In 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.’ ” 

(Ibid., 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 habeas 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 framed 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 has 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 judgment 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 before 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 have 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 to 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 trial, 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, is to prevent litigants 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 make 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 cases “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 capital 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 granting 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 appeals’ 

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; see 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 of 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 by initiative is inconsistent and cannot operate 

concurrently with an earlier statute enacted by the Legislature, the later statute 

prevails.” (Burlington Northern & Santa Fe Ry. Co. v. Public Utilities 

Commission (2003) 112 Cal.App.4th 881, 890; see Professional 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 corpus 

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 provisions 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 heard 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 corpus 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 reviewing a 

superior court habeas corpus ruling. The statute declares that “[a] successive 

petition shall not be used as a means of reviewing 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 practice 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 attacks 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 not 
30

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 the 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 petition,” if the prisoner can 

establish that a “fundamental miscarriage of justice occurred.” (Id. 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 of 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 was 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 evidence.” 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 person 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 not 

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 

Constitution [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 similarly 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 successive 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 state 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 operated 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.)

With 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 

second 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 barred 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 cases 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 — receive [a successive] petition 

running several hundred pages long. Evaluation of the [successive] petition 

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 significant 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 those 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 prisoners with 

meritorious legal claims may languish in prison for 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 that 
34

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 

postconviction 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 successive 

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 proceedings, 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. (Id. at p. 443.) We advised counsel that in the future, 

abusive writ practices could result in financial sanctions. (Id. 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 based its 

holding instead on separation of powers grounds. (Ibid.; see Abdool v. Bondi (Fla. 

2014) 141 So.3d 529, 546.) In Abdool, the same court rejected an equal protection 

challenge to a different statute restricting the time for capital defendants to file 

postconviction motions. Holding that the statute did not unjustifiably treat capital 
35

defendants differently from noncapital defendants, the court added: “[E]ven if we 

were to find that equal protection is implicated, there is no constitutional violation.

. . . 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 sentenced 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 section 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 Claims

Petitioner contends Proposition 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 untimely 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 offenders 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 argument 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 nearly 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 

suggest a sharp demarcation between the operations of the three branches of 

government, California decisions long have recognized that, in reality, the 

separation of powers doctrine ‘ “does not mean that the three departments of our 

government are not in many respects mutually dependent” ’ [citation], 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 well 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 proceedings and appeals is undisputed.” 

(Brydonjack, supra, 208 Cal. at pp. 442-443; accord, Mendocino, supra, 13 

 

22 In passing, petitioner claims the separation of powers doctrine 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 restrictions upon constitutional functions of the 

courts provided they do not defeat or materially impair the exercise of those 

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

their exercise. [Citations.]” (Brydonjack, at p. 444; accord, Mendocino, at p. 54.)

We have emphasized that “[t]he separation of powers 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, generally limits a 

court’s ability to consider evidence. 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 invalid.” (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 observations 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. In 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 

difference, 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 year 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 prisoner 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 sentence.”

Petitioner contends the restrictions imposed by section 1509, subdivision 

(d) amount to a material 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 recognized 

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 the 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. 442–443; 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 inherent 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. 57; 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. We 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 

limitations. The new restrictions may limit claims that this court previously 

allowed prisoners 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 relief, 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 These 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 capital 

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, subdivision (a) (giving criminal cases “precedence over . . . any 

civil matters” as to trial setting); Welfare and Institutions 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, subdivision (a) (same 

provision for delinquent minors), 395, subdivision (a)(1) (appeals in dependency 

cases given “precedence over all other cases”), 800 (same provision for 

delinquency appeals); Code of Civil Procedure sections 35 (trial calendar 

preference for election matters), 36 (trial calendar preference 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 proceedings 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 the 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 boundary 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 imposing fixed 

time 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 is 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 

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).)
42

Hospital (2017) 2 Cal.5th 330, 343; People 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 contended 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 

procedure 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 by 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, as 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 484 (Shafter-Wasco), which involved a time limit on the resolution of 

 

27 Elections Code former 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 thereafter 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 tried 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 decision 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 which 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 jurisdiction 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 here, three days after appellant’s opening 

brief was filed and twenty-seven 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 

decision that might require careful consideration which could not be given within 
44

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 within 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 statute’s constitutionality 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.) Otherwise, 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. Kostas v. Johnson (Ind. 1946) 69 N.E.2d 592, 595; Atchison, 

T. & S. F. Ry. Co. v. Long (Okla. 1926) 251 P. 486, 489; Schario v. State (Ohio 

1922) 138 N.E. 63, 64; see 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 [threemonth limit for deciding appeals “does not on its face necessarily ‘unduly burden 

or unduly interfere with the judiciary in the exercise of its judicial functions’ ”].)

The California approach has the benefit of allowing time limits 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 trial 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 inherent authority and responsibility to fairly 

 

(Footnote continued from previous page.)

A similar construction of a mandatory limit as “directory” was applied in Waite v. 

Burgess (Nev. 1952) 245 P.2d 994, 996.

29 At the time, section 1050, subdivision (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 criminal 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 witnesses. 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 

any 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 one important element of a court’s inherent judicial authority in this 

regard is ‘the power . . . to control the disposition 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 court 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 effectively function as a separate department in the 

scheme of our state government.’ ” (Engram, supra, 50 Cal.4th at p. 1146.)

In Engram we acknowledged the Legislature’s power to enact rules of 

procedure, but quoted Brydonjack for the fundamental limitation noted above: 

“ ‘The 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 Cal.4th 

at p. 1147, quoting Brydonjack, supra, 208 Cal. at p. 444.) We discussed two 

examples in which the courts refused to give mandatory effect to statutes requiring 
47

a continuance of trial. In Lorraine v. McComb (1934) 220 Cal. 753, 754 

(Lorraine), a statute 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 Engram, 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” that 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 the 

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 

set 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 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 

 

30 The Engram court explained that the term “directory” is sometimes used to 

describe 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. 1148, fn. 7.)
48

overwhelms the resources available to the court for the disposition of both 

criminal and civil matters.” (Engram, 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 decided, 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 Thurmond opinion: ‘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 Engram, 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.5th at p. 1329.) The statutes 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 relief 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. We 
49

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 directory, 

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 procedure, 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, California courts have held that statutes may not be 

given mandatory effect, despite mandatory phrasing, when strict enforcement 

would create constitutional problems. Section 190.6 raises similar concerns. The 

statute is framed in mandatory terms, and the voters were told in the ballot 

materials that the five-year limit on the posttrial review process would be binding 

and enforceable. On the other hand, both proponents and the Attorney General 

contended at oral argument that the five-year limit should not be given mandatory 

effect, but should instead be understood as largely aspirational. They urge that the 

limit may be seen as providing a frame of reference for the initiative’s specific 

reforms designed to expedite the review process.

Petitioner disagrees. He 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 authority to balance the matters before them in a 

way that is fair to all litigants.

On balance, we conclude it is best to accept the Attorney General’s and 

intervener’s concession that the five-year limit is not mandatory. We do so for 

two reasons. First, regardless of how the ballot materials characterized the fiveyear review limit, section 190.6, subdivision (e) provides no effective mechanism 

to enforce the limit. It states: “The failure of the parties or of a court to comply 
50

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 

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. 

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).” (§ 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, “in 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 Court 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, subdivision (e)’s reference to subdivision (b) was a drafting 

error. They claim they meant to refer to subdivision (d). But it is not clear that 

the reference to subdivision (b) in subdivision (e) was merely a typographical 

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. 

Subdivision (e)’s reference to subdivision (b) continues that long-standing 

provision.

In 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 

authorized to “seek relief by petition for writ of mandate” “[i]f a court fails to 
51

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, 

serious 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 in 

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 

efforts 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 meet 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 court 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, courts have the “responsibility to fairly 

and efficiently administer all of the judicial 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, 730 (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 issued 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 

“ ‘mandamus 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. Superior 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 jurisdiction. (Modern Barber, 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, the ballot materials 

suggested the five-year limit would 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 

could 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 limit 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 reformation, 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 added.) “[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 constitutionality . . . .” (Kopp v. 

Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 626, 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 the 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 of 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-judgment 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.5th 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, California 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, for instance, we noted “the court in 

Thurmond did not hold that the statutory provisions in question were invalid on 

their face or were to be totally disregarded, but rather concluded that the statutes 

should be applied in a manner that accorded reasonable discretion 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 

infer 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 

rights 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.5th 

at p. 1319, quoting Thurmond, supra, 66 Cal.2d at p. 839, and Lorraine, supra, 

220 Cal. at p. 756.)

Following nine decades of precedent, we too decline to infer that 

lawmakers intended strict adherence to a fixed deadline that would undermine the 

courts’ authority as a separate branch of government. It is far from certain that the 

voters contemplated such a result. Nothing in the Proposition 66 suggests that 
55

short shrift should be given to the decisionmaking process, or that capital posttrial 

review proceedings should dominate 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 Cal.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, 35 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 complete 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 administration 

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; Thurmond, supra, 66 Cal.2d at pp. 838-840; Garrison, at p. 437;

Lorraine, supra, 220 Cal. at pp. 754, 757; cf. Shafter-Wasco, at pp. 488-489.)

In Engram we read the terms of section 1050 requiring calendar preference 

for criminal cases in light of the statute’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. 1151, quoting § 1050, subd. (a).) The provisions 

establishing the preference were as facially mandatory 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 and 
56

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), italics 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 

review 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 apply 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 twoyear 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 consequence 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] resolve[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 them as 

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 the 

proceedings that are pending before it in a manner that is consistent with the ends 

of justice.” (Engram, supra, 50 Cal.4th at p. 1151.) Therefore, “the provision 

cannot properly be interpreted as establishing an absolute or inflexible rule . . . in 

total abrogation of a trial court’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 proposition’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 how 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 without 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 will 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 “ultimate control or 

discretion over the order in which the cases pending before [them] should be 

considered” (Engram, supra, 50 Cal.4th at p. 1151), 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 

exercise 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 

important 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 supervision 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 charters, 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 and 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 sections 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 Council, 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 of 
60

compliance with statutory deadlines. (California Redevelopment 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.

CORRIGAN, A. C. J.

WE CONCUR:

WERDEGAR, J.

LIU, J. 

KRUGER, J. 

HOCH, 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 BY 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 enforceable 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 proponents 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 

existing 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 the 
2

separation of powers 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 voters 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 the 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, realistic 

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—Statistical 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 representation 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 appointed 
4

for habeas corpus petitions. (2016 Voter Guide, supra, analysis of Prop. 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 at 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 

Guide, 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 Justice 

(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.) The 
5

Commission made several recommendations to expedite 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 inmates 

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 Corpus 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 of 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 briefed. (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 endorsed 
6

a proposal to allow capital habeas corpus petitions 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 Penalty 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 Corpus 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 Appeal 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 Appeal 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 Commission’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 intended 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 federal 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 Proposed 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 courts 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 election 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 appeals, 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 Miller, 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 obligation 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 

time 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, juror 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 Initiative, 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 attention 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 capital 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 petitions 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 unclear 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 yet 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 burglary-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 correction 
10

motion in October 2003. The record correction process was completed, 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 transcript 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 respondent’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 Court; 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 drawn 
11

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, including 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 peculiar 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 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 

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 require 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 on 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. 

(Ibid.)

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 discretion 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 (ShafterWasco), 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 construed 
13

the statute as directing the court “to give this appeal as early a hearing and 

decision as orderly procedure in this court 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.2d 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 openended 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” (ShafterWasco, 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 ultimately 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 resources 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.) The 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 accomplishing 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 “continuously 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 Judicial 

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 proportion 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 only 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)) with 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 

within 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 

provides no guidance for responsible actors charged with the fair and efficient 

administration of justice.

LIU, J.

WE CONCUR: WERDEGAR, J.

KRUGER, J.

HOCH, 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 DISSENTING OPINION BY CUÉLLAR, J.

What voters most need so they can exercise their constitutionally protected 

franchise effectively is clarity and candor. 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 familiarize 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 initiative 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 

that 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 deadline 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. Const., 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 majority 
2

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 “when 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 did 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 copy 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 and 
3

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 voter 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 Guide, 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 death 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. (10), 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 

state 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 

conspicuous 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 Legis. 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 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”].) 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 influenced 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, also 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 voters 
5

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 nothing 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 

uncertainty 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 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.” (Italics added.) 

Petitioner argues that a statute purporting to dictate when a court shall hear 

and determine a case would unconstitutionally interfere with the judiciary and 

violate the separation of powers. Both the Attorney General and intervenerproponents 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 

be,” 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 department 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 unconstitutional 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 attention, 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 court 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 

matter 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 business 
7

“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 precedent, “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. Language 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 statutory 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 well 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 statute 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 such 
8

regulation was 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 constitutional 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 contest 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 decisionmaking 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 Cal.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 this 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 precedence over civil cases did not require the 

Riverside County Superior Court to assign criminal cases to the limited number of 
9

courtrooms “reserved for specialized civil matters or to the several judges from 

outside the county who had been assigned specifically 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 civil 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 criminal 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 the 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 statute’s purpose was also pivotal to In re ShafterWasco 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.) Because “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 should 
10

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 what 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 undisclosed 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 shall 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 construed 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 majority — and Justice Liu’s 

concurring opinion — neglect to mention is that we have never done so in the face 
11

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 consistent 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 directory 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 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.” 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 penalty 

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 that 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 ingredient 

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 Legislative 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, supra, 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” receive 

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 

forth 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. 107 [“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 unknown”]; 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 as 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 expedite 

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 fiveyear 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 the 
15

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 are 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 Foundation, which appears here as counsel for intervenerproponents, 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 [“the 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/dontabolish-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-willfix-californias-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-votersminds-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 that “[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-penaltyprocedures> (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 deadline 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 statutory 

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 

[“Proponents 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 deadline. 

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 the 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 judicial 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 compatibility 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 [invalidating 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 exercise 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 the 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. 595.)

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 January 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 adopted 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 of 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 petition.

“(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 reasonable 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 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.

“(e) The failure of the parties or of a court to comply 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 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. 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 the 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 limit 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 the 

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 sentence 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 this 

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 without 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, subdivision (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 majority 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 this 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 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. 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 enforce 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 is 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 

“shall” 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 control 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 processes 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 the 
22

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 

recognize 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 statute, 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 justification 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 statute 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 

Legislature had sufficiently ruminated about “the details” of the rule’s operation or 
23

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 such 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 of 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 fiveyear deadline — which is what the initiative provides, what the voters were told they 

were getting, and 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 one 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 amendments 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 distinguishable 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 and 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.5th 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 provisions were set forth in a separate subdivision (see Code 

Civ. Proc., § 1054.1, subd. (b)) or a separate paragraph (id., § 595, 2d par.) and 
25

were grammatically severable. (See Verio, at p. 1325.) The invalid mandatory 

provisions were functionally severable, in 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, because “ ‘[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 aspects 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 construed 

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 provisions 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 intervener-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 court 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 the 
26

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 state 

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 speedy 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 as 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 five-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 dockets.” (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 the 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 implement the specific 

reforms above would amount to a risky bet that some other entity will swoop in to 
27

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 might 

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, act 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 

enacted. 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, 255-256.) 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 constitutionality 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 petition 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 concedes this new provision constitutes a “significant 

departure” from existing practice governing appellate review of capital habeas 
29

corpus petitions. (Maj. opn., ante, at p. 21.) But it is more than that: It is also 

unconstitutional. Unlike the majority, 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, the 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 jurisdiction 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 power 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 “exclusive 

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 death 
30

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 Courts 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 in 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 attacking 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 judgment. (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 expeditious 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 appeal 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 jurisdiction in capital 
31

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 habeas 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 construe 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 alone, 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 corpus

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 

grounds 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 appellate 

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 

Appeal “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 appellate 

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 mandatory, 

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 the 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 hearing 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 declared 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 

death 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 [the 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 responsibility . . . 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, 937-938; 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,” ’ ” and 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 

Constitution.” (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” of 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 corpus 
35

proceedings (in which 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 chooses 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 

California 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 report 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 

judgment,” setting aside a charge of capital murder. (People v. White (1911) 161 
36

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 where 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 

to 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 cases. As we have previously noted, a 

challenge to a criminal conviction by means of a petition for writ of habeas corpus 
37

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., 

ante, 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 possibility 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 for 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 petition 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.4th 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 The 

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 

Remedies § 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. Const., 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, supra, 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 appears. 

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 appeal, 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 purpose 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. 71; 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 Const., 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 Court 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 reviewing 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 Redevelopment 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 unconstitutional, 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 

severable.” (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. (Matosantos, 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 preclude 

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 higher 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 Com. (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 invalidate 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 efficacy 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 

concedes, 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 a 
42

clearly unconstitutional statute (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 deliberation, 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 do 

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 what 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, the 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 construed as mandatory where “that result is 
43

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 candid 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 version 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 mentioned 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. 

CUÉLLAR, J.

I CONCUR: IKOLA, J.*

_______________________

* Associate Justice of the Court 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 of 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 & Dunkle, 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.

Hilary 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, Kevin 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 Innocence 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 Deputy 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 Attorneys 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 Justin 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 Respondents.

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 behalf 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 Law 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):

Christina Von der Ahe Rayburn

Orrick, Herrington & Sutcliffe

2050 Main Street, Suite 1100

Irvine, CA 92614

(949) 567-6700

Jose A. Zelidon-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