¹ Background Respondent also claims that the section 1170.95 petition process available to those convicted of felony murder or murder under a natural and probable consequences theory 25. violates the California Constitution as amended by Proposition 9, a crime victims’ rights initiative known as Marsy’s Law. (In re Vicks (2013) 56 Cal.4th 274, 282; Santos v. Brown (2015) 238 Cal.App.4th 398, 404.) The stated purpose of Proposition 9, enacted by voters in 2008, is to “[p]rovide victims with rights to justice and due process[,]” and to “[i]nvoke the rights of families of homicide victims to be spared the ordeal of prolonged and unnecessary suffering, and to stop the waste of millions of taxpayer dollars, by eliminating parole hearings in which there is no likelihood a murderer will be paroled, and to provide that a convicted murderer can receive a parole hearing no more frequently than every three years, and can be denied a follow-up parole hearing for as long as 15 years.” (Voter Information Guide, supra, text of Prop. 9, § 3, ¶¶ 1–2, p. 129.) The measure “includes both constitutional and statutory amendments. The constitutional provisions recognize various rights of victims of crime and of the people of California” (In re Vicks, supra, 56 Cal.4th at p. 282), while “[m]ost of the law’s statutory amendments relate to parole” (id. at p. 283). The voters limited the legislative amendment of Proposition 9 as follows: “The statutory provisions of this act shall not be amended by the Legislature except by a statute passed in each house by roll-call vote entered in the journal, three-fourths of the membership of each house concurring, or by a statute that becomes effective only when approved by the voters. However, the Legislature may amend the statutory provisions of this act to expand the scope of their application, to recognize additional rights of victims of crime, or to further the rights of victims of crime by a statute passed by a majority vote of the membership of each house.” (Voter Information Guide, supra, text of Prop. 9, § 9, p. 132.) Respondent claims that the petition process under section 1170.95 is unconstitutional because it violates the right of crime victims to finality of judgment and does not consider the safety of victims, their families and the public with respect to release. Relevant to these claims, Proposition 9 amended the California Constitution to include the following findings and declarations: “The rights of victims also include 26. broader shared collective rights that are held in common with all of the People of the State of California and that are enforceable through the enactment of laws and through good-faith efforts and actions of California’s elected, appointed, and publicly employed officials.…” (Cal. Const., art. I, § 28, subd. (a)(4).) Further, “[v]ictims of crime are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been perpetrated. This prolonged suffering of crime victims and their families must come to an end.” (Id., subd. (a)(6).) Proposition 9 also amended the California Constitution to provide that victims are entitled “[t]o a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings” (Cal. Const., art. I, § 28, subd. (b)(9)), and “[t]o have the safety of the victim, the victim’s family, and the general public considered before any parole or other post-judgment release decision is made” (id., subd. (b)(16)).

² Finality With respect to postconviction release proceedings and decisions, Proposition 9 provides victims with the right to notice, to be present and to be heard. (Lamoureux, supra, 42 Cal.App.5th at pp. 264–265, citing Cal. Const., art. I, § 28, subd. (b)(7), (b)(8).) Thus, although Proposition 9 provides victims with the right to “prompt and final conclusion of … any related postjudgment proceedings” (Cal. Const., art. I, § 28, subd. (b)(9)), the measure “did not foreclose post-judgment proceedings altogether” and instead “expressly contemplated the availability of such postjudgment proceedings .…” (Lamoureux, supra, at pp. 264–265.) Consistent with this interpretation, other postjudgment proceedings enacted after 2008 have specifically recognized the existence of victims’ rights under Proposition 9. (Id. at p. 265, citing § 1170.126, subd. (m) & People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1300 [Prop. 36]; 27. § 1170.18, subd. (o) [Prop. 47]; § 1170.91, subd. (b)(6) [providing recall and resentencing process for current or former military members suffering from certain mitigating problems or conditions].) As the court in Lamoureux stated, “[i]t would be anomalous and untenable for us to conclude, as the People impliedly suggest, that the voters intended to categorically foreclose the creation of any new postjudgment proceedings not in existence at the time Marsy’s Law was approved simply because the voters granted crime victims a right to a ‘prompt and final conclusion’ of criminal cases.” (Lamoureux, supra, 42 Cal.App.5th at p. 265, quoting Cal. Const., art. I, § 28, subd. (b)(9), fn. omitted.) We agree. Neither the plain language of the initiative nor the ballot material suggests that in enacting Proposition 9, voters intended to prohibit the Legislature from creating new postjudgment proceedings. (Pearson, supra, 48 Cal.4th at p. 571.) Moreover, subdivisions (c) and (d)(1) of section 1170.95 provide specific time limits, which may be extended only upon a showing of good cause. This ensures victims receive a prompt and final conclusion with respect to postjudgment proceedings initiated under section 1170.95. (Lamoureux, 42 Cal.App.5th at p. 265, fn. 6.)

³ Effect on Final Judgments Incidental to Broader Penal Reform In sum, the Legislature enjoys plenary power “to define crimes and establish penalties therefor[]” (People ex rel. Lungren v. Peron (1997) 59 Cal.App.4th 1383, 1400; accord, People v. Chun, supra, 45 Cal.4th at p. 1183), and a duly enacted statute is 38. presumed constitutional (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1086; accord, People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509). The central focus of Senate Bill No. 1437 is equity: ensuring that criminal liability for murder aligns with individual culpability. This is not a novel concept and our high court has stated, “[I]t is now firmly established that ‘[t]he concept of proportionality is central to the Eighth Amendment,’ and that ‘[e]mbodied in the Constitution’s ban on cruel and unusual punishments is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” [Citation.]’” (In re Coley (2012) 55 Cal.4th 524, 538.) In Enmund v. Florida, the United States Supreme Court concluded that in imposing the death penalty, the Constitution requires individualized consideration of the defendant’s culpability. (Enmund v. Florida (1982) 458 U.S. 782, 798 (Enmund).) Subsequently, in Tison v. Arizona, the United States Supreme Court held that the Enmund standard of culpability that must be met to impose the death penalty is “major participation in the felony committed, combined with reckless indifference to human life[.]” (Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison).) The court stated, “A critical facet of the individualized determination of culpability required in capital cases is the mental state with which the defendant commits the crime. Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.” (Id. at p. 156.) The Tison standard was thereafter codified in section 190.2, subdivision (d), which was amended by Proposition 115. (Voter Information Guide, supra, text of Prop. 115, § 10, p. 66; People v. Banks, supra, 61 Cal.4th at p. 794.) More recently, there has been a sea change in the law, procedurally and substantively, with respect to juvenile offenders (Montgomery v. Louisiana (2016) ___U.S. ___ [136 S.Ct. 718, 734–735]), grounded in the recognition that children differ 39. from adults because of their “‘diminished culpability and greater prospects for reform’” (id. at p. 733). Given the legislative intent underlying Senate Bill No. 1437 and viewed in the context of broader changes in the law tightening the connection between criminal liability and individual culpability, we conclude that Senate Bill No. 1437, rather than impermissibly targeting a specific case or class of cases, is directed at broader penal reform. Viewed through that lens, that some final judgments will necessarily be reopened pursuant to the change in the law is purely incidental to the broader reformation of the law. As such, the change to the crime of murder is analogous to the change to the sentencing law effected by the Determinate Sentencing Act. More recently, as detailed by the Court of Appeal in Lamoureux, the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)), which reduced punishment for certain offenders, and the Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)), which reduced certain theft- and drug-related felonies to misdemeanors, are both well-known ameliorative measures that provide for postfinal judgment relief. (Lamoureux, supra, 42 Cal.App.5th at pp. 262–263.) The court also cited several other less well-known examples (id. at p. 263, citing Health & Saf. Code, § 11361.8, subd. (a), Pen. Code, §§ 1170.22, 1170.91), and commented, “The prevalence of such legislation is not a sufficient reason on its own to affirm the constitutionality of section 1170.95 on separation of powers grounds. However, in our view, it confirms there is nothing especially unique about section 1170.95, which appears to us to constitute a legitimate and ordinary exercise of legislative authority. Further, it demonstrates the sweeping breadth and potentially drastic implications of the People’s separation of powers argument. Extending the holdings of the Bunn and King decisions to prohibit the retroactive reopening of final judgments of conviction would call into question the constitutionality of all the statutory provisions described ante, and potentially others. Because we conclude such an 40. extension is unwarranted, we need not grapple with those potentially far-reaching consequences any further today” (Lamoureux, supra, at p. 264). C. Clemency Power Respondent also argues Senate Bill No. 1437 violates the separation of powers doctrine by impermissibly infringing upon the governor’s pardon power, a core function of the executive branch. We find this argument similarly unpersuasive. The power to grant clemency is vested in the executive branch (Lamoureux, supra, 42 Cal.App.5th at p. 254; Way, supra, 74 Cal.App.3d at p. 175), and is an act of mercy or grace (Lamoureux, supra, at p. 254; People v. Shepard (2015) 239 Cal.App.4th 786, 796; Santos v. Brown, supra, 238 Cal.App.4th at p. 419). In Way, discussed in the preceding section, the Court of Appeal concluded that in enacting section 1170.2 under the Determinate Sentencing Act, the Legislature’s motivation was “to restructure punishments for criminal conduct and to make them uniform to the extent reasonably possible[]” and “[i]t undertook no act of mercy, grace, or forgiveness toward past offenders, such as characterizes true commutations.” (Way, supra, at p. 177.) The court concluded that “the shortening of existing prison terms by section 1170.2 is purely incidental to the main legislative purpose” (id. at p. 177), and is “valid as incidental to a comprehensive reformation of California’s penal system[]” (id. at p. 178). Subsequently, the California Supreme Court relied on the reasoning in Way and upheld a statute authorizing the destruction of marijuana arrest and conviction records. (Younger, supra, 21 Cal.3d at pp. 117–118.) The court held the statute “does not authorize destruction of records of a conviction for marijuana possession as an act of grace, but as a means of implementing the Legislature’s principal objective of reducing the adverse social and personal effects of that conviction which linger long after the prescribed punishment has been completed. Any infringement on the power of executive clemency is thus purely incidental to the main purpose of the statute—which is well 41. within the province of the Legislature—and hence does not violate the separation of powers.” (Id. at p. 118.) We agree with the court in Lamoureux that the rationale of Way and Younger applies here. (Lamoureux, supra, 42 Cal.App.5th at p. 255.) As explained in Lamoureux, “in cases where a petitioner makes a prima facie showing of entitlement to relief (§ 1170.95, subd. (c)), and the prosecution fails to carry its burden of proving the petitioner is ineligible for resentencing (id., subd. (d)(3)), murder sentences may be vacated and sentences recalled (id., subd. (d)(1)). Although section 1170.95 requires resentencing on remaining counts, such that a given prisoner’s overall sentence may not actually be shortened (id., subd. (d)(1)), it is apparent and undisputed that at least some successful petitioners will obtain shorter sentences or even release from prison. [¶] However, the objective of the Legislature in approving section 1170.95—like the legislative aims underpinning the challenged laws in the Way and Younger cases—was not to extend ‘an act of grace’ to petitioners. [Citations.] Rather, the Legislature’s statement of findings and declarations confirms it approved Senate Bill 1437 as part of a broad penal reform effort. The purpose of that undertaking was to ensure our state’s murder laws ‘fairly address[] the culpability of the individual and assist[] in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.’ [Citations.] “The outcome of a successful petition under section 1170.95 further underscores the fact that section 1170.95 is not merely an act of grace akin to an exercise of executive clemency. As noted ante, ‘[a] successful Senate Bill 1437 petitioner’s criminal culpability does not simply evaporate; a meritorious section 1170.95 petition is not a get- out-of-jail free card. Instead, the petitioner is resentenced on the remaining convictions. If the murder was charged “generically” and the target offense was not charged, the murder conviction must be redesignated as the target offense or underlying felony for resentencing purposes.’ [Citation.] Thus, while some qualifying petitioners certainly 42. may obtain reduced prison sentences under section 1170.95, there is no guarantee of such an outcome. [¶] In accordance with the Younger and Way decisions, it is clear … that section 1170.95’s interference with the executive’s clemency authority, if any, is merely incidental to the main legislative purpose of Senate Bill 1437.” (Lamoureux, supra, 42 Cal.App.5th at pp. 255–256.) As such, “section 1170.95 does not impermissibly encroach upon the core functions of the executive.” (Id. at p. 256.) III. Remaining Claims Seek Advisory Opinion Finally, although respondent concedes these issues are not presented by this appeal, she argues that the evidentiary hearing provided for under section 1170.95, subdivision (d)(3), potentially violates the double jeopardy clause; the remedies provided for under section 1170.95, subdivision (e), in cases not involving an underlying offense are susceptible to challenge based on the rights to due process and a jury trial; and that in some cases, the statute of limitations, which cannot be revived, will have lapsed for the target offense. These claims, however, are not ripe for adjudication and, therefore, any opinion on these issues would be premature and advisory. (People v. Miracle (2018) 6 Cal.5th 318, 337 [“‘We will not … adjudicate hypothetical claims or render purely advisory opinions.’”]; People v. Buza (2018) 4 Cal.5th 658, 693 [“We … abide by … a ‘“cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.”’”]; People v. Mosley (2015) 60 Cal.4th 1044, 1054–1055, fn. 7 [“[T]rue adherence to judicial restraint and economy counsels against an unnecessary detour into an analysis of … statutory meaning [on an issue not before the court].”].) Furthermore, as the court stated in Lamoureux, “[t]he People are the individuals on whose behalf violations of criminal laws are prosecuted.” (Lamoureux, supra, 42 Cal.App.5th at p. 267.) “[T]hey do not represent the particularized interests of persons who have been accused of criminal offenses or petitioners seeking relief from convictions[]” and therefore, they “lack standing to challenge the hearing and remedy 43. provisions of section 1170.95 based on any alleged infringement on petitioners’ constitutional rights.” (Lamoureux, supra, at p. 267, citing In re Cregler (1961) 56 Cal.2d 308, 313 [“‘[O]ne will not be heard to attack a statute on grounds that are not shown to be applicable to himself .…’”]; accord, Teal v. Superior Court (2014) 60 Cal.4th 595, 599, italics omitted [“‘As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator.’”].) Accordingly, we do not reach these claims. DISPOSITION The judgment is reversed and this matter is remanded to the trial court for further proceedings under section 1170.95. MEEHAN, J. I CONCUR: SMITH, J. 44. POOCHIGIAN, Acting P.J., concurring and dissenting. Several appellate decisions in California have held that Senate Bill No. 1437 (2017–2018 Reg. Sess.) (S.B. 1437) did not amend Proposition 7. Those cases have relied on the premise that S.B. 1437 dealt with the punishment for murder as a related “but distinct” subject from the substantive elements of murder. (See, e.g., People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 282.) I do not view the two subjects as distinct and would hold that S.B. 1437 improperly amended Proposition 7. I respectfully dissent from the majority’s contrary holding on that issue, but otherwise concur as to the other issues presented. Courts have a Duty to Jealously Guard the Initiative Power As noted by the majority, Proposition 7 “ ‘did not authorize the Legislature to amend its provisions without voter approval,’ ” and the amendment of Proposition 7 through legislative action is precluded by the California Constitution (Cal. Const., art. II, § 10, subd. (c)). (Maj. opn., ante, at p. 9.) The majority opinion and other decisions opining on the constitutionality of S.B. 1437 all acknowledge that “[u]nder our constitutional system the Legislature is not the exclusive source of legislative power.” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1042; People v. Hannon (2016) 5 Cal.App.5th 94, 100.) “The legislative power of this State is vested in the California Legislature which consists of the Senate and the Assembly, but the people reserve to themselves the powers of initiative and referendum.” (Cal. Const., art. IV, § 1.) “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” (Cal. Const., art. II, § 8, subd. (a).) “It has long been recognized that ‘the initiative is in essence a legislative battering ram which may be used to tear through the exasperating tangle of the traditional legislative procedure and strike directly toward the desired end.’ [Citation.]” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 357.) “[I]t is our solemn duty ‘ “to jealously guard” ’ the initiative power, it being ‘ “one of the most precious rights of our democratic process.” ’ [Citation.]” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248; Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 250; Rossi v. Brown (1995) 9 Cal.4th 688, 695; Legislature v. Eu (1991) 54 Cal.3d 492, 500–501.) As part of their initiative system, the voters also have “ ‘the power to decide whether or not the Legislature can amend or repeal initiative statutes. This power is absolute and includes the power to enable legislative amendment subject to conditions attached by the voters. [Citation.]’ [Citation.]” (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251; Professional Engineers in California Government v. Kempton, supra, 40 Cal.4th at p. 1046, fn. 10.) “The people’s reserved power of initiative is greater than the power of the legislative body. The latter may not bind future Legislatures [citation], but by constitutional and charter mandate, unless an initiative measure expressly provides otherwise, an initiative measure may be amended or repealed only by the electorate. Thus, through exercise of the initiative power the people may bind future legislative bodies other than the people themselves. [Citations.]” (Rossi v. Brown, supra, 9 Cal.4th at pp. 715–716.) “There is a presumption, though not conclusive, that voters are aware of existing laws at the time a voter initiative is adopted. [Citations.]” (Santos v. Brown (2015) 238 Cal.App.4th 398, 410; People v. Hannon, supra, 5 Cal.App.5th at p. 101.) “ ‘The purpose of California’s constitutional limitation on the Legislature’s power to amend initiative statutes is to “protect the people’s initiative powers by precluding the Legislature from undoing what the people have done, without the electorate’s consent.” [Citations.]’ [Citation.] In this vein, decisions frequently have asserted that courts have a duty to ‘ “ ‘jealously guard’ ” ’ the people’s initiative power, and hence to ‘ “ ‘apply a liberal construction to this power wherever it is challenged in order that the right’ ” ’ to

⁴ Findings and Declarations Under Subdivision (a) Finally, respondent cites subdivisions (a)(4) and (a)(6) of article I, section 28 of the California Constitution, quoted in part I.C.1. of the Discussion, in support of her argument. However, unlike subdivision (b), which sets forth victims’ rights that are enforceable under subdivision (c) in any court having jurisdiction over the case, the findings and declarations set forth in subdivision (a) are “not an independent source of enforceable rights.” (Lamoureux, supra, 42 Cal.App.5th at p. 266, citing People v. Superior Court (Johnson) (2004) 120 Cal.App.4th 950, 956; see Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 792–793 [statutory findings and declarations provided guidance in carrying out bill’s provisions, not binding limitations].) Likewise, to the extent that respondent’s argument relies on the preamble in sections 2 and 3 of Proposition 9, these findings and declarations and statements of purpose and intent “‘“do not confer power, determine rights, or enlarge the scope of [the] measure.”’” (Lamoureux, supra, at p. 266, quoting People v. Guzman (2005) 35 Cal.4th 577, 588.) Accordingly, on these grounds, we reject respondent’s claim that section 1170.95 violates Proposition 9. 29. II. Claim Senate Bill No. 1437 Violates Separation of Powers Doctrine A. Separation of Powers Doctrine Next, respondent argues that the petition process under section 1170.95 violates the separation of powers doctrine by impermissibly intruding into a core judicial function insofar as it requires that convictions be vacated even in cases in which judgment is final. Respondent also argues that the availability of relief in cases in which judgment is final usurps the governor’s pardon power. “The California Constitution establishes a system of state government in which power is divided among three coequal branches (Cal. Const., art. IV, § 1 [legislative power]; Cal. Const., art. V, § 1 [executive power]; Cal. Const., art. VI, § 1 [judicial power]), and further states that those charged with the exercise of one power may not exercise any other (Cal. Const., art. III, § 3).” (People v. Bunn (2002) 27 Cal.4th 1, 14 (Bunn).) The primary purpose of the separation of powers doctrine “‘is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government[]’” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 557), as well as to avoid overreaching by one governmental branch against another (Bunn, supra, at p. 16). While there is some interdependence among the branches, the Constitution “does vest each branch with certain ‘core’ [citation] or ‘essential’ [citation] functions that may not be usurped by another branch.” (Id. at p. 14.) “‘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.’” (Briggs v. Brown (2017) 3 Cal.5th 808, 846, quoting Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52.) Instead, it is violated “only when the actions of a branch of government defeat or materially 30. impair the inherent functions of another branch.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 662.) B. Material Impairment of Core Judicial Function We turn first to respondent’s argument that the retroactive petition process under section 1170.95 intrudes into a core judicial function insofar as it authorizes relief in cases in which judgment is final. “Our Constitution vests ‘[t]he legislative power of this State … in the California Legislature which consists of the Senate and Assembly .…’ (Cal. Const. art. IV, § 1.) It is in the nature of state constitutions that they, unlike the federal Constitution, generally do not grant only limited powers. (Marine Forests Society v. California Coastal Com. (2005) 36 Cal.4th 1, 29.) Consequently, ‘unlike the United States Congress, which possesses only those specific powers delegated to it by the federal Constitution, it is well established that the California Legislature possesses plenary legislative authority except as specifically limited by the California Constitution.’ (Id. at p. 31.) Lying at the core of that plenary authority is the power to enact laws. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 254.) It has been said that pursuant to that authority, ‘[t]he Legislature has the actual power to pass any act it pleases,’ subject only to those limits that may arise elsewhere in the state or federal Constitutions.” (Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 497– 498.) “[O]rdinarily a final judgment is conclusive.” (Quarry v. Doe I (2012) 53 Cal.4th 945, 980; accord, Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at p. 25) However, as set forth above, “it is the function of the legislative branch to define crimes and prescribe punishments, and … such questions are in the first instance for the judgment of the Legislature alone.” (In re Lynch (1972) 8 Cal.3d 410, 414; accord, People v. Chun (2009) 45 Cal.4th 1172, 1183; Manduley v. Superior Court, supra, 27 Cal.4th at p. 552; see Howard Jarvis Taxpayers Assn. v. Padilla, supra, 62 31. Cal.4th at p. 499 [“The principal function of a legislature is ‘to enact wise and well-formed and needful laws [citation] .…’”].)10 1. Cases Holding Final Judgments Yield to Broader Penal Reform As respondent acknowledges, there is authority for the proposition that where broader penal reform is at issue, “some legislative interference with final court judgments is permissible.” In Way v. Superior Court (1977) 74 Cal.App.3d 165 (Way), the Court of Appeal considered a challenge to the repeal of the Indeterminate Sentencing Law and enactment of the Uniform Determinate Sentencing Act of 1976 (Determinate Sentencing Act), effective July 1, 1977. (Way, supra, at pp. 168–169). “In contrast to the [Indeterminate Sentencing Law], which was designed ‘to mitigate the punishment[,] place emphasis upon the reformation of the offender,’ and ‘make the punishment fit the criminal rather than the crime’ [citation], the [Determinate Sentencing] Act declares that ‘the purpose of imprisonment for crime is punishment. This purpose is best served by … provision for uniformity in the sentences of offenders.…’ (Pen. Code, § 1170, subd. (a)(1).) [¶] To achieve total uniformity, … section 1170.2 provides for retroactive application of the [Determinate Sentencing] Act to prisoners incarcerated under the [Indeterminate Sentencing Law].” (Id. at p. 169.) The Determinate Sentencing Act was challenged by a group of judges on the ground that it violated the separation of powers doctrine. (Way, supra, 74 Cal.App.3d at pp. 169–170.) The Court of Appeal concluded that the Legislature lacked the power to grant a commutation or pardon, a power vested exclusively in the Governor (id. at pp. 175–176), but that the motivation underlying section 1170.2 was “to restructure punishments for criminal conduct and to make them uniform to the extent reasonably 10 As respondent points out, “‘[t]he power of the people through the statutory initiative is coextensive with the power of the Legislature.’” (Manduley v. Superior Court, supra, 27 Cal.4th at p. 552.) The claim here, however, is that the Legislature impermissibly intruded into core functions of the judicial and executive branches by upending final judgments and exercising clemency. 32. possible[]” (Way, supra, at p. 177). As such, the statute “undertook no act of mercy, grace, or forgiveness toward past offenders, such as characterizes true commutations.” (Ibid.) Although existing prison terms were shortened under the Determinate Sentencing Act, it was “purely incidental to the main legislative purpose .…” (Ibid.)11 The court further concluded that the retroactive change did not disturb the rule “that once a judgment in a criminal case becomes final, it may not be reduced by subsequent legislative action.” (Way, supra, 74 Cal.App.3d at p. 179.) The court explained, “The distinction is that in this case final judgments will be reduced only as an incident of a major and comprehensive reform of an entire penal system. In view of the legislative objective, the final judgment rule must yield.” (Id. at p. 180.) Two years later, another Court of Appeal considered whether section 209, which was amended under the Determinate Sentencing Act to provide that kidnapping for robbery was punishable by life with the possibility of parole, applied retroactively to a defendant serving a sentence of life without the possibility of parole under the prior version of the statute. (People v. Community Release Bd. (1979) 96 Cal.App.3d 792, 794.) The amendment to section 209 was not expressly retroactive and the court concluded that because the amendment was ameliorative, it was to be applied retroactively “‘to every case to which it constitutionally could apply.’” (People v. Community Release Bd., supra, at p. 799, quoting In re Estrada (1965) 63 Cal.2d 740, 745.) Relying on Way, the court further concluded that the amendment applied retroactively to the case before it, notwithstanding that judgment was final, because “the retroactivity feature was merely incidental to the proper legislative function of revising the penal laws.” (People v. Community Release Bd., supra, at p. 800.) The court 11 As discussed further, post, the California Supreme Court cited the commutation analysis in Way with approval when it rejected a challenge to legislation providing for the destruction of marijuana arrest or conviction records, a challenge premised on legislative interference with executive clemency power. (Younger v. Superior Court (1978) 21 Cal.3d 102, 117–118 (Younger).) 33. observed, “We therefore take it as settled that legislation reducing punishment for crime may constitutionally be applied to prisoners whose judgments have become final.” (Ibid.) Subsequently, the Court of Appeal in In re Chavez considered a 2001 amendment to a statute criminalizing the filing of a false personal income tax return. (In re Chavez (2004) 114 Cal.App.4th 989, 992 (Chavez).) Under the Determinate Sentencing Act, the punishment for the crime was 16 months, two years or three years. (Id. at p. 994.) In 1983, the statute was revised pursuant to an extensive bill (id. at pp. 994–995), and that revision resulted in the inclusion of language reflecting an indeterminate sentence of “‘not more than three years’” (id. at p. 995). The statute was renumbered in 1993 but retained the language reflecting an indeterminate sentence. (Ibid.) In 2001, the statute was amended again to return the punishment to that provided for under the Determinate Sentencing Act: 16 months, two years or three years. (Id. at pp. 991–992.) At issue in Chavez was whether the two defendants who were serving indeterminate sentences under the prior version of the statute were entitled to benefit from the 2001 amendment despite the finality of their judgments. (Chavez, supra, 114 Cal.App.4th at pp. 992–993.) The court concluded that the statute was amended in 2001 to effect a nonsubstantive correction resulting from an earlier drafting error with respect to the indeterminate sentence language and that the amendment was intended to apply retroactively to all whom it could apply. (Id. at pp. 998–999.) The Attorney General argued that the amendment did not apply in cases where judgment was final because the “amendment was not passed as part of a major and comprehensive reform of the entire penal system.” (Id. at p. 1000.) The court rejected the argument, stating, “It … appears settled that a final judgment is not immune from the Legislature’s power to adjust prison sentences for a legitimate public purpose. [Citations.] We conclude that the purpose of achieving equality and uniformity in felony sentencing is a legitimate public purpose to which the finality of judgment must yield.” (Ibid., fn. omitted.) 34. 2. Bunn Decision Notwithstanding the foregoing authority, respondent relies on the California Supreme Court’s decision in Bunn in support of her argument that the Legislature may not subvert final judgments. We are not persuaded that Bunn applies, however. Prior to 1994, the statutes of limitations applicable to felony sex crimes committed against children were three and six years, and the Legislature determined that these periods were inadequate given the problems inherent in sex crimes against children: delay in reporting, the victims’ difficulty in recalling and recounting the abuse, and “their vulnerability to adults in positions of authority and trust.” (Bunn, supra, 27 Cal.4th at p. 6 [discussing former §§ 800 & 801].) In response, the Legislature enacted a statute that, following subsequent amendments, “authorize[d] prosecution for criminal acts committed many years beforehand—and where the original limitations period ha[d] expired—as long as prosecution beg[an] within a year of a victim’s first complaint to the police” (Stogner v. California (2003) 539 U.S. 607, 609 [addressing § 803, former subd. (g)]) (Stogner); Bunn, supra, at pp. 6–11.) In People v. Frazer, the California Supreme Court upheld the statute as constitutional in the face of a challenge on ex post facto and due process grounds. (People v. Frazer (1999) 21 Cal.4th 737, 742–743, abrogated by Stogner, supra, 539 U.S. at pp. 632–633 [holding § 803, former subd. (g)’s revival of a time-barred prosecution violates ex post facto clause].) Subsequently, in the companion cases of Bunn and King, the California Supreme Court considered a challenge to section 803, former subdivision (g), on the ground that the statute violated the separation of powers doctrine. (Bunn, supra, 27 Cal.4th at p. 5; People v. King (2002) 27 Cal.4th 29, 31 (King).) Relying on the United States Supreme Court’s separation of powers analysis in Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211 (Plaut), which involved a statute of limitations issue in a civil suit for damages, the California Supreme Court concluded that section 803, former subdivision (g), was unconstitutional insofar as the “refiling 35. provision supplants final judgments, and thus invades the judicial power in violation of the separation of powers clause of the California Constitution (art. III, § 3).” (King, supra, at p. 31; accord, Bunn, supra, at p. 25.) In Bunn, the court observed, “Plaut … declared, in almost talismanic form, that Congress lacks the power to ‘reopen’ [citation], ‘correct’ [citation], ‘“reverse”’ [citation], ‘revise’ [citation], ‘vacate’ [citation], or ‘annul’ [citation] final court judgments. The controlling separation of powers principle was stated as follows: ‘Having achieved finality, … a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.’” (Bunn, supra, 27 Cal. 4th at p. 19.) “Moreover, notwithstanding the constitutional protection afforded final judgments on an individual basis, [the statute at issue in Plaut] did not somehow escape separation of powers scrutiny merely because the reopening provision affected ‘a whole class of cases.’ [Citation.] The court reiterated that a separation of powers violation occurs when postjudgment legislation deprives court decisions ‘of the conclusive effect that they had when they were announced.’ [Citation.] Thus, whether a statute targets particular suits or parties, or whether it purports to apply more generally …, the critical factor for separation of powers purposes is whether such impermissible legislative interference with final judgments has occurred.” (Id. at pp. 20– 21.) Despite the arguably broad language in Plaut, its federal constitutional separation of powers analysis is not binding.12 Furthermore, “[i]t is … ‘axiomatic that a decision does not stand for a proposition not considered by the court[]’” (Wishnev, supra, 8 12 “[T]he doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States” (Whalen v. United States (1980) 445 U.S. 684, 689, fn. 4), and federal separation of powers decisions are not binding, although they may have persuasive value (Marine Forests Society v. California Coastal Com., supra, 36 Cal.4th at pp. 29–30). 36. Cal.5th at p. 217) and, in Bunn, the California Supreme Court’s specifically held as follows: “[A] refiling provision like section 803(g) cannot be retroactively applied to subvert judgments that became final before the provision took effect, and before the law of finality changed. This ban applies even where lawmakers have acted for ‘the very best of reasons’ [citation], and whether or not legislative disagreement with the ‘legal rule’ underlying the judgment has been expressed” (Bunn, supra, 27 Cal.4th at pp. 24–25, italics added). Both Plaut and Bunn confronted legislative amendment to statutes of limitation that resulted in the revival of time-barred actions where judgment was final, and both courts concluded that in cases where judgment was final, such legislation violated the separation of powers doctrine by reopening final judgments. (Plaut, supra, 514 U.S. at p. 240; Bunn, supra, 27 Cal.4th at p. 24.) While Plaut, in interpreting the separation of powers doctrine under the federal constitution, found it “irrelevant … that the final judgments reopened by [the statute at issue] rested on the bar of a statute of limitations” (Plaut, supra, at p. 228), we decline to divorce the decision in Bunn from its context given that “[t]he purpose of separation of powers is to protect individual liberty by preventing concentration of powers in the hands of any one individual or body.” (Obrien v. Jones (2000) 23 Cal.4th 40, 65.) Relevant to our discussion, post-Plaut and Bunn, the United States Supreme Court reversed a California Supreme Court decision holding that former section 803 did not, in reviving time-barred criminal cases, violate the ex post facto clause. (Stogner, supra, 539 U.S. at p. 609.) The court addressed four categories of ex post facto laws and although it found the statute unconstitutional because it fell within the category of laws that “‘inflicted punishments, where the party was not, by law, liable to any punishment’” (id. at p. 612, italics omitted), the court also recognized that the statute potentially violated the ex post facto clause under another category by violating the rules of evidence (id. at p. 615). Within this context, the court explained, “Significantly, a statute of limitations 37. reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. [Citation.] And that judgment typically rests, in large part, upon evidentiary concerns—for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. [Citation.] Indeed, this Court once described statutes of limitations as creating ‘a presumption which renders proof unnecessary.’ [Citation.] [¶] Consequently, to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution, and thereby to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted, would have been legally insufficient.” (Id. at pp. 615–616.) It is well established that “[o]nce the statute of limitations for an offense expires without the commencement of prosecution, prosecution for that offense is forever time-barred.” (People v. Robinson (2010) 47 Cal.4th 1104, 1112, citing Stogner, supra, 539 U.S. at pp. 615–616; see People v. Williams (1999) 21 Cal.4th 335, 341; People v. Gerold (2009) 174 Cal.App.4th 781, 787.) Given both that the specific statute at issue in Bunn reached into a final judgment to revive a time-barred criminal action, directly undermining individual liberty interests, and the specific legislative concerns underlying statutes of limitation, as discussed in the preceding paragraph, we reject an expansive view of Bunn, and King, as standing for the proposition that under no circumstance may a final judgment be disturbed. (Lamoureux, supra, 42 Cal.App.5th at p. 260.) Such a broad reach would be at odds with the proposition that there is no separation of powers violation where the legislation at issue advances “a legitimate public purpose to which the finality of the judgment must yield.” (Chavez, supra, 114 Cal.App.4th at p. 1000.)