Briggs v. Brown

In California, after a death judgment has been imposed in the trial court, the defendant is entitled to an automatic appeal

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,

I agree that section 190.6(d), construed in light of our precedent, is "directive." (Maj. opn., ante , 221 Cal.Rptr.3d at pp. 502-503, 400 P.3d at p. 60.) 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.

In People v. Engram (2010) 50 Cal.4th 1131 , 116 Cal.Rptr.3d 762 , 240 P.3d 237 ( 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

Directive statutes that set realistic time limits on judicial decisions may inform how quickly cases should be decided, although the issue is ultimately

We Concur: Werdegar, J.

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,

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 intervener-proponents so concede. Little wonder: With but one exception, state supreme courts have unanimously concluded that the timing of a judicial decision is a core judicial function, protected from legislative encroachment. ( State v. Buser (2015) 302 Kan. 1 , 9 ( Buser ); see, e.g., Sands v. Albert Pike Motor Hotel (1968) 245 Ark. 755 , 434 S.W.2d 288 , 291-292 ["as laudable as the purpose intended may be," requiring a court to decide a workers' compensation case

A candid analysis of a statute's purpose was also pivotal to In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 , 130 P.2d 755 . 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, 130 P.2d 755 .) The Court of Appeal acknowledged

B.

The majority's efforts to avoid this conclusion are far from convincing.

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 fair and principled administration of justice." (Maj. opn., ante , 221 Cal.Rptr.3d at p. 501, 400 P.3d at p. 59; 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 , 221 Cal.Rptr.3d at p. 495, fn. 28, 400 P.3d at p. 54, 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

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, 105 Cal.Rptr.2d 46 , 18 P.3d 1198 ["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, 197 P.2d 330 .) Given the pervasive uncertainty as to whether certain defects "should

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 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

After some signature gathering, the initiative proponents decided to postpone the effort until 2016. (Nirappili, Coalition Delays Initiative to Reform State Executions , Mercury

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. 501-502, 400 P.3d at 59 [construing § 190.6(d)"to maintain the courts'

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

Thurmond v. Superior Court (1967) 66 Cal.2d 836 , 59 Cal.Rptr. 273 , 427 P.2d 985 ( 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, 59 Cal.Rptr. 273 , 427 P.2d 985 .)

In In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484 , 130 P.2d 755 ( Shafter-Wasco ), the court declined to treat as mandatory a statutory deadline requiring judicial resolution of an appeal concerning the dissolution of an irrigation district to be decided three months after the appeal is filed. The court instead construed 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, 130 P.2d 755 .)

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, 59 Cal.Rptr. 273 , 427 P.2d 985 .) In Engram , the force of the statute was more vague; we construed the directive to give priority to criminal cases over civil cases as subject to the open-ended condition that "such precedence [must be] consistent with the ends of justice." ( Engram , supra , 50 Cal.4th at p. 1161, 116 Cal.Rptr.3d 762 , 240 P.3d 237 .) And Shafter-Wasco , in interpreting a statutory deadline as a directive "to give this appeal as early a hearing and decision as orderly procedure in this court will permit" ( Shafter-Wasco , supra , 55 Cal.App.2d at p. 489, 130 P.2d 755 ), said it was ultimately up to the

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, 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.

The majority does not contest a court's inherent authority to manage its docket in a manner that best promotes the pursuit of

This, too, is the principle at the heart of our analysis in People v. Engram (2010) 50 Cal.4th 1131 , 116 Cal.Rptr.3d 762 , 240 P.3d 237 ( 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 courtrooms "reserved for specialized

And in Garrison , supra , 32 Cal.2d 430 , 196 P.2d 884 , we held that a statute providing that a court " 'shall' " ( id . at p. 435, 196 P.2d 884 ) decide an election contest within 10 days should 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, 196 P.2d 884 ).

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, 16 Cal.Rptr.3d 869 , 94 P.3d 1071 ; accord, Salinas v. United States (1997) 522 U.S. 52 , 59-60, 118 S.Ct. 469 , 139 L.Ed.2d 352 .) 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'

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

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 , 221 Cal.Rptr.3d at pp. 498, 499-500, 400 P.3d at pp. 56-57, 58.) 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,

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 , 221 Cal.Rptr.3d at pp. 499-500, 400 P.3d at p. 58.) 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 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 pp. 500-501, 400 P.3d at pp. 58-59.) 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

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, 105 Cal.Rptr.2d 46 , 18 P.3d 1198 ( Thompson ).)

The majority concedes this new provision constitutes a "significant departure" from existing practice governing appellate review of capital habeas corpus petitions. (Maj. opn., ante , at p. 482, 400 P.3d at p. 43.) 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

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 , 85 Ill.Dec. 269 , 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 (1977) 293 N.C. 276 , 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].)

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,

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 , 221 Cal.Rptr.3d at p. 485, 400 P.3d at p. 46.) 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." (

The remaining question is whether the provision barring the use of a "successive petition" (read "new petition" (maj. opn., ante , 221 Cal.Rptr.3d at pp. 482-483, fn. 14, 400 P.3d at pp. 43-44, 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, 135 Cal.Rptr.3d 683 , 267 P.3d 580 ( 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, 135 Cal.Rptr.3d 683 , 267 P.3d 580 .) An invalid provision can be severed from the remainder of the enactment "if, and only if, it is 'grammatically, functionally and volitionally

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

Liu, J.

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 , 221 Cal.Rptr.3d at p. 501, 400 P.3d at p. 59.)

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

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 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 , 199 Cal.Rptr.3d 1 , 365 P.3d 790 [25 years from judgment of the death to resolution on appeal]; People v. Cunningham (2015) 61 Cal.4th 609 , 189 Cal.Rptr.3d 737 , 352 P.3d 318 [19 years]; People v. Brown (2014) 59 Cal.4th 86 , 172 Cal.Rptr.3d 576 , 326 P.3d 188 [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.

Moreover, the 2014 Proposed Initiative would have amended article I, section 27 of the California Constitution to add a provision

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, 199 Cal.Rptr.3d 85 , 365 P.3d 861 .) 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, 77 Cal.Rptr.2d 153 , 959 P.2d 311 ; In re Clark (1993) 5 Cal.4th 750 , 767-768, 21 Cal.Rptr.2d 509 , 855 P.2d 729 ; In re Waltreus (1965) 62 Cal.2d 218 , 225, 42 Cal.Rptr. 9 , 397 P.2d 1001 ; In reDixon (1953) 41 Cal.2d 756 , 759, 264 P.2d 513 ; 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

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 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. (

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.

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

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

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

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.

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

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, 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

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

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 regulation was contemplated. (See Garrison v. Rourke (1948) 32 Cal.2d 430 , 436, 196 P.2d 884 ( Garrison )

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, 116 Cal.Rptr.3d 762 , 240 P.3d 237 ; Garrison , supra , 32 Cal.2d at p. 437, 196 P.2d 884 ; Thurmond v. Superior Court (1967) 66 Cal.2d 836 , 839, 59 Cal.Rptr. 273 , 427 P.2d 985 ( Thurmond ); Lorraine v. McComb (1934) 220 Cal. 753 , 757, 32 P.2d 960 ( Lorraine ).) What the majority-and Justice Liu's concurring opinion-neglect to mention is that we have never done so in the face of a clear indication that the time limit or other restriction on judicial discretion was designed precisely to have mandatory effect.

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, 112 Cal.Rptr.3d 722 , 235 P.3d 42 .) 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, every last one of the cases cited by the majority lacks the essential ingredient

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

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

At issue in Verio were amendments to two civil procedure statutes we had previously construed in Thurmond , supra , 66 Cal.2d 836 , 59 Cal.Rptr. 273 , 427 P.2d 985 to be directory. ( Verio , supra , 3 Cal.App.5th at p. 1325-1326, 208 Cal.Rptr.3d 436 .) 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, 208 Cal.Rptr.3d 436 .) 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, 208 Cal.Rptr.3d 436 .)

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 , --- Cal.Rptr.3d at p. ----, ---P.3d at p. ----) 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, 208 Cal.Rptr.3d 436 .) The remainder of the statutes, though, could still be given effect in a manner consistent with our jurisprudence on severability and the statutory design.

"Good luck" might be in order as well for those who contemplate a challenge to the

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, 105 Cal.Rptr.2d 46 , 18 P.3d 1198 , 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 sentences under law." ( Jurek v. Texas (1976) 428 U.S. 262 , 276, 96 S.Ct. 2950 , 49 L.Ed.2d 929 ; accord,

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, 204 Cal.Rptr.3d 770 , 375 P.3d 887 .) 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, 290 P. 25 .) 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 , 221 Cal.Rptr.3d at p. 485-486, 400 P.3d at p. 46.) 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 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

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 , 221 Cal.Rptr.3d at pp. 483-484, 400 P.3d at pp. 44-45.) 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

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, 276 Cal.Rptr. 326 , 801 P.2d 1077 ; see Matosantos , supra , 53 Cal.4th 231 , 271, 135 Cal.Rptr.3d 683 , 267 P.3d 580 .) 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, 25 Cal.Rptr.2d 449 , 863 P.2d 694 .) 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, 25 Cal.Rptr.2d 449 , 863 P.2d 694 .) So I would invalidate section 1509.1 in its entirety.

III.

The bait-and-switch undertaken by the proponents of Proposition 66-and countenanced

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, 64 Cal.Rptr.3d 124 , 164 P.3d 557 ; see Kabran , supra , 2 Cal.5th at p. 343, 212 Cal.Rptr.3d 361 , 386 P.3d 1159 ["The question is ultimately one of legislative intent"]; Garrison , supra , 32 Cal.2d at p. 435, 196 P.2d 884 [statute will be construed as mandatory where "that result is 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, 220 Cal.Rptr.3d 230 , 397 P.3d 936 (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, 220 Cal.Rptr.3d 230 , 397 P.3d 936 ["adopting