WWLHD? (What would the Legislature have done?

Of late, the California Supreme Court has devoted a fair bit of its time to resolving ambiguities in several of the recently amended statutes aimed at criminal justice reform.

Four such cases are currently pending.

In People v. Lopez, S258175, the court is to decide whether Senate Bill 1437, a 2018 statute that tightens the subjective intent requirement for murder by substantially curtailing the so-called "vicarious liability" theories for murder (namely, felony murder and the natural and probable consequences doctrine) also applies to the crime of attempted murder.

In People v. Lewis, S260598, the court is to decide whether a trial court may summarily deny a petition for relief under Senate Bill 1437 if the petitioner's "record of conviction" demonstrates, as a matter of law, that he or she is ineligible for that relief.

In People v. Williams, S262229, the court is to decide whether the constitutional guarantee of equal protection overrides the text of Penal Code Section 3051 that denies a youth offender parole hearing to juveniles convicted of violent sex crimes because Section 3051 grants such hearings to juveniles convicted of first-degree murder.

In People v. Tirado, S257658, the court is to decide whether a trial court has the power, when deciding whether to exercise its newly conferred discretion to "strike or dismiss" a firearm enhancement under Penal Code Section 12022.53, to substitute unpled and unproven lesser-included firearm enhancements.

In each of these cases, the Courts of Appeal were unable to agree on how to answer each of the questions presented.

Lopez sits atop a 5-2-1 split. Five cases have held that SB 1437 does not provide any relief to persons convicted of attempted murder. People v. Lopez, 38 Cal. App. 5th 1087 (2019); People v. Munoz, 39 Cal. App. 5th 738 (2019); People v. Dennis, 47 Cal. App. 5th 838 (2020); People v. Alabyue, 51 Cal. App. 5th 207 (2020); People v. Love, 55 Cal. App. 5th 273 (2020). Two have held that its strictures apply to future attempted murder prosecutions, but not to persons with existing attempted murder convictions. People v. Larios, 42 Cal. App. 5th 956 (2019); People v. Sanchez, 46 Cal. App. 5th 637 (2020). And one has held that its strictures apply to future attempted murder prosecutions and to persons whose attempted murder convictions are not yet "final," but not to persons whose attempted murder convictions are "final." People v. Medrano, 42 Cal. App. 5th 1001 (2019).

Lewis sits atop a 7-1 split. The vast majority of courts have held that summary denial may be appropriate. Compare People v. Lewis, 43 Cal. App. 5th 1128 (2020); People v. Verdugo, 44 Cal. App. 5th 320 (2020); People v. Cornelius, 44 Cal. App. 5th 54 (2020); People v. Tarkington, 49 Cal. App. 5th 892 (2020); People v. Drayton, 47 Cal. App. 5th 965 (2020); People v. Edwards, 48 Cal. App. 5th 666 (2020); People v. Torres, 46 Cal. App. 5th 1168 (2020) with People v. Cooper, 54 Cal. App. 5th 106 (2020).

Williams creates a 1-1 split with People v. Edwards, 34 Cal. App. 5th 183 (2019), with Williams finding no equal protection violation and Edwards finding no rational legislative purpose for treating sex offenders more harshly than first-degree murderers.

Tirado sits atop a 3-1 split, with the majority view holding that trial courts do not have the power to substitute uncharged, lesser-included enhancements. Compare People v. Tirado, 38 Cal. App. 5th 637 (2019); People v. Garcia, 46 Cal. App. 5th 786 (2020); People v. Valles, 49 Cal. App. 5th 156 (2020) with People v. Morrison, 34 Cal. App. 5th 217 (2019).

In every single one of these cases, the fundamental question is the same: WWLHD? What Would the Legislature Have Done ... if it had identified and resolved the latent statutory ambiguity or uncertainty identified by the parties in that particular case? This is the $64,000 question because the "fundamental goal" of statutory interpretation is "to ascertain and carry out the intent of the Legislature." People v. Cruz, 13 Cal. 4th 764, 782 (1996).

Coming to a definitive answer, through litigation, about what the Legislature would have intended comes with substantial transaction costs. Lopez, Lewis, Williams and Tirado are pending before the Supreme Court only after dozens -- if not hundreds -- of trial courts and Courts of Appeal grappled with the same questions. And once the Supreme Court issues its opinions in those specific cases, those cases -- as well as all of the cases parked behind them and awaiting their outcome -- will be sent back to the Courts of Appeal and, thereafter, to the trial courts, potentially for further hearings in light of the answers provided by the Supreme Court.

Although the courts exist in part to give litigants a forum where they can argue about what a statute means, that process takes time, uses up scarce judicial resources, and results in a period of uncertainty while the Legislature's true intent may go unheeded.

Is there a shortcut?

The most expedient one is if there was a way for the courts, as soon as a latent ambiguity or uncertainty in a statute is identified, to simply ask the Legislature: What did you want to do? The federal courts can certify questions to the California Supreme Court (Cal. R. Ct. 8.548); why can't the courts certify a question to the Legislature? The short answer is because the separation of powers requires that this conversation happen after the courts have come up with their answer, at which point the Legislature is free to amend the statute to specify (or clarify) its intent.

But is it possible to identify latent ambiguities or uncertainties in statutes before they are enacted -- at a time when the Legislature can express its preferences before the investment of substantial judicial time and resources? This "ounce of prevention," Ben Franklin might say, may be "worth a pound of cure."

Mechanisms are already in place to review proposed legislation and to ferret out possible ambiguities and constitutional infirmities.

The Office of Legislative Counsel provides legal input and drafting assistance to a bill's author. But some bills move so quickly through the Legislature that the Office is given little time to perform its analysis.

The advocacy groups that propose and oppose legislation provide their input on possible ambiguities. But the scrutiny these groups provide is often intertwined with their advocacy agendas.

And the Legislature's own policy-based committees, like each body's Public Safety and Judiciary Committees, carefully review the bills put before them for hearing.

Should we consider a further mechanism or process to supplement -- and thereby enhance -- these already existing mechanisms?

Whatever the mechanism's form (a panel or a committee) or duration (ad hoc or standing), to be helpful, it would probably need to have several attributes. First, it would have to be comprised of lawyers or other experts knee-deep in the pertinent area. Second, those actors would be tasked with looking for latent ambiguities in the legislation based on the arguments that affected parties would likely make, in litigation, to exploit the bill's current language. Third, the mechanism would apply its scrutiny relatively early on in the process, before sponsors and stakeholders hitch their wagons to certain language. Among other questions, the mechanism could probe the statute's retroactive effect (as in Lopez), its procedural steps (as in Lewis), its substantive scope (as in Lopez, Williams and Tirado), and the ways in which advocates -- and courts -- might look to constitutional provisions as fulcrums to expand or narrow that scope (as in Williams). Lastly, and after its "beta testing," the mechanism's representative(s) could present the possible ambiguities to the Legislature, which could then clarify its intent or, in cases where doing so would scuttle the bill, purposefully leave the issue unaddressed.

Variants of such a mechanism already exists today. The Judicial Council has several advisory committees comprised of judges and lawyers, whose job it is to accept the premise of the bills they review, look for possible implementation problems, and share their thoughts with the Legislature.

Would further use of those committees or development of a separate mechanism along the lines suggested above help the courts better understand and implement the Legislature's intent, or would it just add another layer of unhelpful review?

This, too, is up to the Legislature. 