Recent Supreme Court of California Opinions

Harrod v. Country Oaks Partners, LLC

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IN THE SUPREME COURT OF
CALIFORNIA
MARK HARROD,
Plaintiff and Respondent,
v.
COUNTRY OAKS PARTNERS, LLC, et al.,
Defendants and Appellants.
S276545
Second Appellate District, Division Four
B312967
Los Angeles County Superior Court
20STCV26536
March 28, 2024
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Evans concurred.

HARROD v. COUNTRY OAKS PARTNERS, LLC
S276545
Opinion of the Court by Jenkins, J.
Under California’s Health Care Decisions Law (Prob.
Code, § 4600 et seq.),1 a principal may appoint a health care
agent to make health care decisions should the principal later
lack capacity to make them. In this case, a health care agent
signed two contracts with a skilled nursing facility. One, with
state-dictated terms, secured the principal’s admission to the
facility. The other made arbitration the exclusive pathway for
resolving disputes with the facility. This second contract was
optional and had no bearing on whether the principal could
access the facility or receive care. The issue before us is whether
execution of the second, separate, and optional contract for
arbitration was a health care decision within the health care
agent’s authority. It was not, and the facility’s owners and
operators may not, therefore, rely on the agent’s execution of
that second agreement to compel arbitration of claims arising
from the principal’s alleged maltreatment that have been filed
in court. We affirm the judgment of the Court of Appeal and
remand for further court proceedings.
I.
BACKGROUND
The Health Care Decisions Law authorizes competent
adults to draft powers of attorney for health care, a type of
1
Unless specified, further statutory references are to the
Probate Code.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
advance health care directive, and thereby “authorize [an] agent
to make health care decisions.” (§ 4671, subd. (a); see §§ 4605,
4629.) The law defines “health care” as “any care, treatment,
service, or procedure to maintain, diagnose, or otherwise affect
a patient’s physical or mental health condition.” (§ 4615.) It
further defines a “health care decision” as one “regarding the
patient’s health care, including . . . [¶] (1) Selection and
discharge of health care providers and institutions[;] [¶] (2
Approval or disapproval of diagnostic tests, surgical procedures,
and programs of medication, including mental health
conditions[;] [¶] (3) Directions to provide, withhold, or withdraw
artificial nutrition and hydration and all other forms of health
care, including cardiopulmonary resuscitation.” (§ 4617, subd.
(a).) “Subject to any limitations in the power of attorney for
health care,” an agent “may make health care decisions” and
“may also make decisions that may be effective after the
principal’s death,” such as approving organ donation, autopsies,
disposition of remains, and records releases. (§ 4683.
A competent adult desiring a power of attorney for health
care may, but need not, use the form found in section 4701.
(§ 4700.) Regardless of whether the adult executes this “form or
any other writing” to establish a power of attorney, the
provisions of the Health Care Decisions Law “govern the effect”
of the writing. (Ibid.
Charles Logan executed a power of attorney for health
care. He used, not the statutory form, but a California Medical
Association form patterned on, and specifically citing to, the
Health Care Decisions Law. Logan appointed his nephew, Mark
Harrod, as his “health care agent” to make “health care
decisions” should Logan’s primary physician find Logan unable
to make those decisions himself. Paraphrasing the portions of
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the Health Care Decisions Law defining health care decisions
(§ 4617) and decisions after death (§ 4683), the form Logan
signed authorized Harrod to (1) “consent, refuse consent, or
withdraw consent to any medical care,” including care to
artificially sustain life; (2) “choose or reject [the principal’s]
physician, other health care professionals or health care
facilities;” (3) “receive and consent to the release of medical
information;” and (4) authorize organ donation, an autopsy, and
disposal of remains.
About two years after executing this power of attorney,
Logan, then approaching his 77th birthday, fell, broke a femur,
and became unable to walk. He entered the Country Oaks Care
Center (Country Oaks), a skilled nursing facility, to obtain
living assistance and rehabilitative treatment. Harrod signed
two agreements with the facility on Logan’s behalf. The first
was an admission agreement that entitled Logan to care at the
facility and specified the services to be rendered, payment
terms, and facility rules. It was unalterable and its terms were
state-mandated. (Health & Saf. Code, § 1559.61 [“all skilled
nursing facilities . . . shall use a standard admission agreement
developed and adopted by the” state and “[n]o facility shall alter”
it unless directed].) The second agreement Harrod signed was
an arbitration agreement. Per the requirements of state law
applicable to long-term health care facilities and federal
regulations governing such facilities participating in Medicare
and Medicaid, the arbitration agreement appeared on a
separate form and was presented as optional. (See id.,
§ 1599.81, subds. (a), (b) [an arbitration agreement must not be
a precondition to facility admission and must “be included on a
form separate from the rest of the admission contract”]; 42
C.F.R. § 483.70(n) (2019) [facilities participating in Medicare
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
and Medicaid “must not require any resident or his or her
representative to sign an agreement for binding arbitration as a
condition of admission”].)2 A boxed warning atop this
agreement stated, “READ CAREFULLY — Not Part of
Admission Agreement,” and continued, “Resident shall not be
required to sign this arbitration agreement as a condition of
admission to this facility or to continue to receive care at the
facility.”3 The arbitration agreement stated disputes concerning
2
Neither compliance with, nor the enforceability of, the
requirements for arbitration agreements under Health and
Safety Code section 1599.81 or 42 C.F.R. § 483.70 (2019) is
before us.
3
The admissions paperwork also included a one-page form
stating, “I, Logan Charles, am able to sign for myself but would
to like [sic] authorize Harrod Mark my nephew to sign the
following documents on my behalf.” Below this statement, six
categories of documents are listed and next to each is a line with
a check mark. The checked categories of documents are:
temporary
consent
to
treat,
advance
directive
acknowledgement, influenza vaccine/pneumonia vaccine
consent, POLST (Physician Orders for Life-Sustaining
Treatment), informed consent for use of device, and California
admission packet. Below these selected options is a line on
which to print the patient’s name, with “Logan Charles” written
in. To the right is a line for the patient’s signature with a script
signature reading “Mark Harrod.” Country Oaks mentions this
form in its opening brief but does not argue it has any
significance to the question we face here. Thus, we need not
decide whether this form gave Harrod permission to sign the
California admission packet or, if it did, whether it authorized
Harrod to agree to arbitration. Nor need we address the
possibility that Logan, through this form or by any other act, led
defendants to believe Harrod had authority to act under a theory
of ostensible agency. (See Civ. Code, § 2300 [“An agency is
ostensible when the principal intentionally, or by want of
ordinary care, causes a third person to believe another to be his
agent who is not really employed by him”].
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
medical care, the provision of services, and the admission
agreement or arbitration agreement would be arbitrated, not
litigated in court. Under the agreement, both parties abjured
“their constitutional right to have any such dispute decided in a
court of law before a jury.”
Based on the care he received during his approximately
one-month stay at Country Oaks, Logan, with Harrod acting as
his guardian ad litem,4 filed a lawsuit in a California superior
court against the facility’s owners and operators, Country Oaks
Partners, LLC, and Sun-Mar Management Services, Inc. Logan
alleged these defendants negligently withheld appropriate care,
resulting in Logan suffering a second fall and fracture, being
unnecessarily diapered, and developing pressure ulcers. In
addition to pleading a cause of action for common law
negligence, Logan asserted causes of action for elder abuse and
violations of his right as a resident of a skilled nursing facility
(Health & Saf. Code, § 1430, subd. (b)). Logan further asked the
superior court for a declaration that he was not bound by the
arbitration agreement that his health care agent, Harrod, had
signed.
Defendants moved to compel arbitration. The superior
court denied the motion. It reasoned Harrod’s power to make
health care decisions for Logan as his health care agent did not
4
Ad litem means “for the suit” in Latin. (Black’s Law Dict.
(11th ed. 2019) p. 53.) “When . . . a person who lacks legal
capacity to make decisions, or a person for whom a conservator
has been appointed is a party, that person shall appear either
by a guardian or conservator of the estate or by a guardian ad
litem appointed by the court in which the action or proceeding
is pending, or by a judge thereof, in each case.” (Code Civ. Proc.,
§ 372, subd. (a)(1).
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Opinion of the Court by Jenkins, J.
encompass the power to sign the optional arbitration agreement.
The Court of Appeal affirmed, agreeing that a health care
decision does not encompass optional, separate arbitration
agreements presented alongside mandatory facility admissions
paperwork. (Logan v. Country Oaks Partners, LLC (2022) 82
Cal.App.5th 365.) Several courts of appeal have reached the
opposite conclusion regarding a health care agent’s health care
decisionmaking authority. (See, e.g., Garrison v. Superior Court
(2005) 132 Cal.App.4th 253 [“The revocable arbitration
agreements were executed as part of the health care
decisionmaking process.”]; Hogan v. Country Villa Health
Services (2007) 148 Cal.App.4th 259, 268 [agreeing with
Garrison].) We now, in the context of Logan’s power of attorney
for health care, address this conflicting authority.5
II.
DISCUSSION
The parties assume Harrod’s selection of a skilled nursing
facility for Logan, pursuant to the first, mandatory contract for
admission, was within the scope of Harrod’s agency. They
disagree, however, whether Harrod’s authority to make “health
care decisions” — as granted by Logan’s power of attorney for
health care — encompassed Harrod’s separate and optional
decision, pursuant to the second contract, to bind Logan to
arbitrate disputes with the facility.
The meaning of a “health care decision” in Logan’s power
of attorney is firmly linked to the meaning of that term in the
5
Because Logan passed away while this case was pending
before us, Harrod, as Logan’s successor in interest, is now the
named plaintiff and respondent. We only discuss Harrod’s
authority as Logan’s agent pursuant to the power of attorney for
health care.
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Health Care Decisions Law. That law, which authorizes powers
of attorney for health care (§ 4671), provides a definition of the
term “health care decisions” (§ 4617) and instructs that its
provisions “govern the effect” of writings created under its
authority (§ 4700). In turn, Logan’s power of attorney, at its
very top, indicates that it is created under the authority of the
Health Care Decisions Law, invoking the Probate Code sections
4600–4805 that contain the law. Intention is the pole star when
interpretating written instruments. (See Civ. Code, § 1636;
Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59
Cal.4th 277, 288; Boyer v. Murphy (1927) 202 Cal. 23, 28 [intent
is “pole-star” in interpreting deed]; Todd v. Superior Court of
San Francisco (1919) 181 Cal. 406, 419 [seeking “the general
intent or predominant purpose of the instrument”]; Sullivan v.
Davis (1854) 4 Cal. 291, 292 [describing power of attorney
language as an “index of intention”].) Logan’s intention to
invoke and be governed by the Health Care Decisions Law, in
this case, seems plain. Moreover, neither party to this case
asserts any deviation between the meaning of “health care
decision” in Logan’s power of attorney and the Health Care
Decisions Law. (Cf. § 4681 [“Except as provided in subdivision
(b), the principal may limit the application of any provision of
this division” in the power of attorney].) Thus, we interpret
Logan’s power of attorney by reference not only to its terms, but
also to the relevant statutory provisions that govern it. (Cf.
Montrose Chemical Corp. of California v. Superior Court (2020
9 Cal.5th 215, 226 [reading insurance agreement “in light of
background principles of insurance law”]; Samson v.
Transamerica Ins. Co. (1981) 30 Cal.3d 220, 231; Swenson v. File
(1970) 3 Cal.3d 389, 393 [contracting parties “are presumed to
know and to have had in mind” the “existing law”].
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Additionally, the Health Care Decisions Law instructs
that when it “does not provide a rule governing agents under
powers of attorney, the law of agency applies.” (§ 4688.) Absent
disputed facts, the meaning of a written instrument (Johnson v.
Greenelsh (2009) 47 Cal.4th 598, 604), questions of statutory
interpretation (Davis v. Fresno Unified School Dist. (2023) 14
Cal.5th 671, 687), and the scope of an agent’s authority
(Metropolitan Life Ins. Co. v. State Bd. of Equalization (1982) 32
Cal.3d 649, 658; Oswald Machine & Equipment, Inc. v. Yip
(1992) 10 Cal.App.4th 1238, 1247) are matters we determine
independently as a matter of law. With these governing
standards in mind, we probe the meaning of “health care
decision” under Logan’s power of attorney, the Health Care
Decisions Law, and the law of agency.
A.
“Health Care Decision” in the Power of Attorney
and Statute
Whether interpreting a provision of a written instrument
or statute, we seek the drafters’ intent, and we start with the
plain meaning of the provision’s text and with its context within
the statute or instrument. (People v. Braden (2023) 14 Cal.5th
791, 804 [statutes]; (Hartford Casualty Ins. Co. v. Swift
Distribution, Inc., supra, 59 Cal.4th at p. 288 [written
instruments].) When a power of attorney is at issue, we have
highlighted the importance of plain meaning by stating an agent
operating under a power of attorney may not “go beyond it nor
beside it.” (Blum v. Robertson (1864) 24 Cal. 128, 140; see also
Johnston v. Wright (1856) 6 Cal. 373, 375.
1.
Definitional Provisions
As noted above, the Health Care Decisions Law specifies a
“health care decision” is one “regarding the patient’s health
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care” (§ 4617, subd. (a)), with “health care” defined as “any care,
treatment, service, or procedure to maintain, diagnose, or
otherwise affect a patient’s physical or mental health condition”
(§ 4615). Logan’s power of attorney does not quote these basic
definitional provisions. But Logan’s power of attorney, as well
as the Health Care Decisions Law, both inform our
interpretation of the term “health care decision” by listing
equivalent examples. Section 4617 states health care decisions
include “[s]election and discharge of health care providers and
institutions.” (§ 4617, subd. (a)(1).) Logan’s power of attorney
allows the agent to “choose or reject . . . health care
professionals or health care facilities.” Section 4617 also
provides that health care decisions include “[a]pproval or
disapproval of diagnostic tests, surgical procedures, and
programs of medication, including mental health conditions”
(§ 4617, subd. (a)(2)), and also whether “to provide, withhold, or
withdraw artificial nutrition and hydration and all other forms
of health care, including cardiopulmonary resuscitation”
(§ 4617, subd. (a)(3)). Logan’s power of attorney likewise
authorizes these types of decisions, allowing the agent to
consent to or refuse “tests, drugs, surgery,” “any medical care or
services,” or “the provision, withholding, or withdrawal of
artificial nutrition and hydration . . . and all other forms of
health care, including cardiopulmonary resuscitation.” Logan’s
power of attorney, in accord with other provisions of the Health
Care Decisions Law (§§ 4678, 4683), further permits the agent
to receive and release medical records so the agent can perform
his or her duties and to make decisions regarding disposition of
the body after death.
Established canons of statutory construction assist us in
ascertaining the meaning of a term primarily defined by way of
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Opinion of the Court by Jenkins, J.
a list of examples and the meaning of examples enumerated on
such a list. “ ‘[W]hen a statute contains a list or catalogue of
items, a court should determine the meaning of each by
reference to the others, giving preference to an interpretation
that uniformly treats items similar in nature and scope.’ ”
(Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343.
When we consider the meaning of one item on a list, we tend to
adopt a more “restrictive meaning” when to do otherwise would
“make the item markedly dissimilar to the other items in the
list.” (Moore v. California State Bd. of Accountancy (1992) 2
Cal.4th 999, 1012.) When a general term is defined through a
list of examples, we tend towards a definition of the general term
that is in concert with the items listed. (Winn v. Pioneer Medical
Group, Inc. (2016) 63 Cal.4th 148, 159; International Federation
of Professional & Technical Engineers, Local 21, AFL-CIO v.
Superior Court (2007) 42 Cal.4th 319, 342; Commission on Peace
Officer Standards & Training v. Superior Court (2007) 42
Cal.4th 278, 294; see also Civ. Code, § 3534 [“Particular
expressions qualify those which are general.”].) These
guidelines have particular force when, as here, there is no
broadening catchall provision amongst the listed items.
(Bernard v. Foley (2006) 39 Cal.4th 794, 807.
These canons of construction weigh against construing the
authority to select health care providers and institutions
(§ 4617, subd. (a)) to include the power to enter optional,
separate dispute resolution agreements, and against
interpreting the general term “health care decision” that
expansively. Each enumerated example of a health care
decision in the Health Care Decisions Law and in Logan’s power
of attorney directly pertains to who provides health care and
what may be done to a principal’s body in health, sickness, or
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death. There is no catchall provision, no express delegation of
power to make decisions that serve other purposes, and no
express grant of power to waive access to the courts, agree to
arbitration, or to otherwise negotiate about or accept any
dispute resolution method. A standalone arbitration agreement
would be “markedly dissimilar” (Moore v. California State Bd. of
Accountancy, supra, 2 Cal.4th at p. 1012) from agreements
about who provides medical care or what care they provide.
Thus, defining the term “health care decision” to include a
standalone arbitration agreement would not be “in concert with”
(Winn v. Pioneer Medical Group, Inc., supra, 63 Cal.4th at p.
159) the items listed and, therefore, with the apparent intent
evidenced by the definitional provisions of Logan’s power of
attorney or the Health Care Decisions Law it invokes.
2.
Further Context
Other portions of Logan’s power of attorney, as well as the
Health Care Decisions Law and the Probate Code, support this
interpretation of the term “health care decision.” (See People v.
Braden, supra, 14 Cal.5th at p. 841 [“ ‘ “ ‘ “[W]e consider portions
of a statute in the context of the entire statute and the statutory
scheme of which it is a part, giving significance to every word,
phrase, sentence, and part of an act in pursuance of the
legislative purpose.” ’ ” ’ ”]; Hartford Casualty Ins. Co. v. Swift
Distribution, Inc., supra, 59 Cal.4th at p. 288 [we interpret the
language of a written instrument “in context”].
We start with the Health Care Decisions Law’s enacted
legislative findings. The Legislature couched the law as
recognizing “the dignity and privacy a person has a right to
expect” and the “fundamental right to control the decisions
relating to [one’s] own health care, including the decision to have
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life-sustaining treatment withheld or withdrawn.” (§ 4650,
subd. (a).) The Legislature referenced “[m]odern medical
technology” and the “artificial prolongation of human life” while
noting the need to protect “individual autonomy” and the
“dignity” of patients facing end of life scenarios. (Id., subd. (b).
These findings reflect that the Health Care Decision Law’s roots
trace back to California’s pioneering “living will” statute, passed
in 1976, and the principle that advanced health care directives
are intended to ensure a patient’s consent to medical treatment.
(See Sabatino, The Evolution of Health Care Advance Planning
Law and Policy (2010) vol. 88, No. 2, 16 Millbank Q., 212–214.
These findings also align with a view of health care decisions as
personal, private, and about treatment. This tends to suggest
that neither the Legislature nor Logan would have viewed
decisions well beyond this ambit — such as whether to select
optional arbitration — as health care decisions.
In addition, explanatory language within the Health Care
Decisions Law’s optional form for advance health care directives
and within Logan’s power of attorney both point in the same
direction as the legislative findings. The statutory form begins
by explaining to the potential principal, “You have the right to
give instructions about your own physical and mental health
care. You also have the right to name someone else to make
those health care decisions for you. This form lets you do either
or both of these things. It also lets you express your wishes
regarding donation of organs and the designation of your
primary physician.” (§ 4701.) The form goes on to state that an
agent whose health care decisionmaking power is not otherwise
limited may make decisions about health care and about
disposition of remains and autopsies after death, mirroring the
language of sections 4617 and 4683. (§ 4701.) The form’s actual
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grant of health care decisionmaking authority states, “My agent
is authorized to make all physical and mental health care
decisions for me, including decisions to provide, withhold, or
withdraw artificial nutrition and hydration and all other forms
of health care to keep me alive, except as I state here:” (Ibid.
The form thus equates health care decisions with “instructions
about [the principal’s] physical and mental health care.” The
California Medical Association form that Logan used contained
similarly limited explanatory language: “This form lets you give
instructions about your future health care. . . . Your agent must
make health care decisions that are consistent with the
instructions in this document and your known desires. It is
important that you discuss your health care desires with the
person(s) you appoint as your health care agent, and with your
doctor(s).” Notably absent from the form and Logan’s power of
attorney is any suggestion that an appointed health care agent
is authorized to make decisions concerning dispute resolution.
In assessing what a health care decision includes, it is also
helpful to consider what the Legislature appears to have viewed
as not amounting to such decisions. For example, the Health
Care Decisions Law distinguishes health care decisions (see
§ 4617) from “decisions relating to personal care,” which a
principal may optionally delegate in a power of attorney for
health care (§ 4671, subd. (b)). Personal care decisions include
“determining where the principal will live, providing meals,
hiring household employees, providing transportation, handling
mail, and arranging recreation and entertainment.” (Ibid.) The
statute further contrasts the making of health care decisions
with the nomination of a conservator of the person or estate.
(§ 4672.) And although a power of attorney for health care may,
as Logan’s does, permit an agent to make “decisions that may be
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effective after the principal’s death” — including directing the
disposition of remains, an autopsy, or the release of records —
these decisions, too, are set forth outside the statutory definition
of health care decisions. (§ 4617; see §§ 4678, 4683.) That the
Health Care Decisions Law specifically permits delegation of
some arguably collateral decisions, such as those pertaining to
medical records or disposition of remains, suggests other,
unspecified decisions — such as a separate, optional decision
regarding dispute resolution — fall outside the bounds of what
legislators and principals to a power of attorney for health care
would consider a health care decision.
The definition of powers under the Health Care Decisions
Law (contained in Division 4.7 of the Probate Code) contrasts
with the definition of powers under the Uniform Statutory Form
Power of Attorney Act, a subsidiary of the Power of Attorney
Law (both contained in Division 4.5 of the Probate Code). The
Power of Attorney Law governs powers of attorney “with respect
to all lawful subjects and purposes” (§ 4000 et seq.; see § 4123
and the Uniform Statutory Form Power of Attorney Act
streamlines creation of such documents, enabling easy
delegation of statutorily defined powers (§ 4400 et seq.; see
§§ 4401, 4450–4463). We should be attuned to differences in
laws that are statutory neighbors and have, as shall be
explained, provisions that share history or interrelate. (See Los
Angeles County Metropolitan Transportation Authority v.
Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1108
[“ ‘ “where a statute, with reference to one subject contains a
given provision, the omission of such provision from a similar
statute concerning a related subject is significant to show that a
different legislative intent existed with reference to the different
statutes” ’ ”]; Wells v. One2One Learning Foundation (2006) 39
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Cal.4th 1164, 1190 [“specific enumeration . . . in one context, but
not in the other, weighs heavily”]; see also FilmOn.com Inc. v.
DoubleVerify Inc. (2019) 7 Cal.5th 133, 144 [“we interpret
statutory language . . . in light of . . . analogous provisions” and
in “the context of its neighboring provisions”].
The Power of Attorney Law, the Uniform Statutory Form
Power of Attorney Act, and the predecessor to the Health Care
Decisions Law — which governed durable powers of attorney for
health care decisionmaking6 — were codified by a single,
integrated enactment in 1994. (Stats. 1994, ch. 307, § 16, pp.
1983–2038; see Legis. Counsel’s Dig., Sen. Bill No. 1907 (1993–
1994 Reg. Sess.) 5 Stats. 1994, Summary Dig., p. 117.) The bill
enacting the Health Care Decisions Law in 1999, which revised
6
The 1994 law governing durable powers of attorney for
health care empowered designated attorneys in fact to make
health care decisions, defined, then, as “consent, refusal of
consent, or withdrawal of consent to health care, or a decision to
begin, continue, increase, limit, discontinue, or not to begin any
health care.” (former § 4612.) The Law Revision Commission
comments accompanying the Health Care Decisions Law stated
that new section 4617, defining “health care decision” under the
current law, “supersedes former Section 4612 and is the same in
substance as Section 1(6) of the Uniform Health-Care Decisions
Act (1993), with the substitution of the reference to
cardiopulmonary resuscitation . . . for the uniform act reference
to orders not to resuscitate. Adoption of the uniform act
formulation is not intended to limit the scope of health care
decisions applicable under former law. Thus, like former law,
this section encompasses consent, refusal of consent, or
withdrawal of consent to health care, or a decision to begin,
continue, increase, limit, discontinue, or not to begin any health
care. Depending on the circumstances, a health care decision
may range from a decision concerning one specific treatment
through an extended course of treatment, as determined by
applicable standards of medical practice.”
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and recast the 1994 provisions authorizing durable powers of
attorney for health care, acknowledged the Power of Attorney
Law and the Uniform Statutory Form Power of Attorney Act,
referencing both in making “related and conforming changes.”
(See Stats. 1999, ch. 658, §§ 27–36, pp. 4853–4856; see Legis.
Counsel’s Dig., Assem. Bill No. 891 (1999–2000 Reg. Sess.) 5
Stats. 1999, Summary Dig., p. 296.
The Uniform Statutory Form Power of Attorney Act offers
a form that lists categories of statutorily defined powers that a
principal may choose to delegate. (§§ 4400, 4401, 4450–4463.
By placing initials next to a listed, pre-defined power, the
principal may authorize an agent to act in “any lawful way with
respect to the . . . initialed subjects,” which include real or
personal property transactions, banking transactions, business
operating transactions, beneficiary transactions, claims and
litigation, or personal and family maintenance. (§ 4401.) The
preamble to the form states, “THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER
HEALTH-CARE DECISIONS FOR YOU.” (§ 4401; see Stats.
1994, ch. 307, § 16.) This admonition dovetails with the
Legislature’s prescription that the Power of Attorney Law
applies to “statutory form powers of attorney” but not to “powers
of attorney for health care” under the Health Care Decisions
Law. (§ 4050, subd. (a)(1)–(2); see Stats. 1999, ch. 658, § 27, p.
4853.
Looking at the definitions of the powers selectable under
the Uniform Statutory Form Power of Attorney Act — powers
the statute distinguishes from health care decisions — there are
notable inclusions. For instance, the power to make decisions
about “personal and family maintenance” includes the power to
“[p]ay for . . . necessary medical, dental, and surgical care,
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
hospitalization, and custodial care.” (§ 4460, subd. (a)(3).) The
power to make decisions about “claims and litigation,” moreover,
includes the power to “submit to arbitration . . . with respect to
a claim or litigation” and to “execute and file or deliver a . . .
waiver, . . . agreement, or other instrument in connection with
the prosecution, settlement, or defense of a claim or litigation.”
(§ 4459, subds. (d), (e).) Additionally, for each power granted in
a statutory form power of attorney — be it a power over personal
maintenance or other matters — the agent is separately
authorized, in exercising power for that subject, to do a variety
of things, including to “[p]rosecute, defend, submit to
arbitration, settle, and propose or accept a compromise with
respect to, a claim existing in favor or against the principal,” and
to “do any other lawful act with respect to the subject.” (§ 4450,
subds. (b), (d), (j).
Comparing the Health Care Decisions Law and the
Uniform Statutory Form Power of Attorney Act is instructive in
several ways. We first note the Legislature’s specific references
in the Uniform Statutory Form Power of Attorney Act to an
agent’s power to settle claims or submit claims to arbitration.
Such references are absent from the Health Care Decisions Law.
The “specific enumeration” of these powers in the power-
defining provisions of the Uniform Statutory Form Power of
Attorney Act “weighs heavily against” implying similar or
related powers in the context of a health care decision defined
under the Health Care Decisions Law. (See Wells v. One2One
Learning Foundation, supra, 39 Cal.4th at p. 1190.) We next
note the Uniform Statutory Form Power of Attorney Act
expressly acknowledges a distinction between the decisions it
authorizes, such as those related to claims and litigation, and
health care decisions. In particular, the warning atop the
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
traditional power of attorney form cautions, in block capital
letters, that it does not authorize health care decisions. (§ 4401.
Furthermore, in discerning the scope of the term “health
care decision,” as envisioned by the Legislature and, in turn,
Logan’s power of attorney, our precedent instructs we should not
only address the differences in the various Probate Code
provisions, but strive to harmonize them, avoiding anomalies.
(First Student Cases (2018) 5 Cal.5th 1026, 1035 [“We construe
statutory language in the context of the statutory framework,
seeking to discern the statute’s underlying purpose and to
harmonize its different components”].) Defining health care
decisions as including decisions about dispute resolution that
are not necessary for health care might create unnecessary
tension between the two regimes for powers of attorney and
between agents designated under them. Doing so, for example,
could undermine the expectations of a principal who designates
one agent to make health care decisions and another agent,
under the form power of attorney, to make decisions about
claims and litigation. A principal executing both form powers of
attorney found in sections 4401 and 4701 could readily view
health care decisions as separate from decisions involving
claims and litigation, because the forms expressly make this
distinction. In that case, the principal might expect and prefer
the agent in charge of claims and litigation to accept or reject
optional arbitration agreements. A broad construction of the
term health care decision might, therefore, and contrary to the
principal’s expectations, “override” a grant of power over claims
and litigation decisions. (See Johnson v. Kindred Healthcare,
Inc. (Mass. 2014) 2 N.E.3d 849, 856, 859 [reaching a similar
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HARROD v. COUNTRY OAKS PARTNERS, LLC
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conclusion under Massachusetts law].)7 On the other hand, if
arbitration is, as here, not a condition of treatment, a health
care agent’s lack of authority to enter arbitration agreements
would not deprive a principal of health care. (Cf. Owens v. Nat’l
Health Corp. (Tenn. 2007) 263 S.W.3d 876, 885 [raising this
concern regarding arbitration agreements included in a contract
required for admission].
Moreover, interpreting the term “health care decision” to
exclude optional and separate agreements to arbitrate fits best
with the Legislature’s decision to use that term in the Health
Care Decisions Law to describe the scope of authority not only
for those (like Harrod) who act pursuant to powers of attorney
for health care, but also for surrogates, including next of kin or
close friends. These surrogates may be selected by the patient
in haste upon entering a facility (§ 4711)8 or selected for the
patient by a provider or facility when there is no recognized
7
In line with this observation, we disapprove dicta in
Hutcheson v. Eskaton FountainWood Lodge (2017) 17
Cal.App.5th 937, 956–957, suggesting a person empowered to
make decisions about all a principal’s claims and litigation lacks
authority to do so when the party across the contracting table is
a health care facility or provider. We have no occasion to
address Hutcheson’s ultimate concern: whether an agent with
power over claims and litigation, but without power over health
care decisions, may agree to arbitration with a health care
facility with whom the agent had no right to contract for services
in the first instance. (See id. at p. 957.
8
“A patient may designate an adult as a surrogate to make
health care decisions by personally informing the supervising
health care provider or a designee of the health care facility
caring for the patient. The designation of a surrogate shall be
promptly recorded in the patient’s health care record.” (§ 4711,
subd. (a).
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health care decisionmaker (§ 4712).9 One of the purposes of the
Health Care Decisions Law was to “set[] out uniform standards
for the making of health care decisions by third parties,”
whether
by
conservators,
agents,
or
surrogates.
(Conservatorship of Wendland (2001) 26 Cal.4th 519, 539–540;
see § 4617 [defining a health care decision as one “made by a
patient or the patient’s agent, conservator, or surrogate”].
Before the Health Care Decision Law’s enactment, Health
and Safety Code section 1418.8 addressed the ability of next of
kin to represent residents in skilled nursing facilities or
intermediate care facilities who lacked capacity to make health
care decisions. (Health & Saf. Code, § 1418.8; see Stats 1992 ch.
1303, § 1, pp. 6326–6328.) Under that provision, when “there is
no person with legal authority to make . . . decisions concerning
[a] resident’s health care,” an attending physician at the facility,
after following certain procedures, may pursue an intervention
that would otherwise require informed consent. (Health & Saf.
Code, § 1418.8, subd. (a).) A person with legal authority to make
these decisions includes a “next of kin.” (Id., subd. (c).) Our
appellate courts have held that next of kin, whether empowered
to make medical decisions either under this statute or through
principles of ostensible agency, lack authority to enter separate,
optional arbitration agreements with nursing facilities.
(Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298,
302 [applying Health & Saf. Code, § 1418.8 and concluding
“Defendants do not explain how the next of kin’s authority to
9
Under specified conditions, “a health care provider or a
designee of the health care facility caring for the patient may
choose a surrogate to make health care decisions on the patient’s
behalf, as appropriate in the given situation.” (§ 4712, subd.
(b).
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HARROD v. COUNTRY OAKS PARTNERS, LLC
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make medical treatment decisions for the patient at the request
of the treating physician translates into authority to sign an
arbitration agreement on the patient’s behalf at the request of
the nursing home”]; Goliger v. AMS Properties, Inc. (2004) 123
Cal.App.4th 374, 377 [applying ostensible agency to reach a
similar conclusion]; Flores v. Evergreen at San Diego, LLC
(2007) 148 Cal.App.4th 581, 594 [applying Health & Saf. Code,
§ 1418.8 and concluding “Unlike admission decisions and
medical care decisions, the decision whether to agree to an
arbitration provision in a nursing home contract is not a
necessary decision that must be made to preserve a person’s
well-being. Rather, an arbitration agreement pertains to the
patient’s legal rights, and results in a waiver of the right to a
jury trial”].
The Health Care Decisions Law built on Health and Safety
Code section 1418.8, and it expressly allows a health care
provider or health care facility designee to appoint, as needed,
next of kin and other close family or friends as surrogates.10
10
The uniform act underlying California’s Health Care
Decisions Law and the initial draft of California’s law would
have allowed next of kin to become surrogates. (2000 Health
Care Decisions Law and Revised Power of Attorney Law (Mar.
2000) 30 Cal. Law Revision Com. Rep. (2000) pp. 25–31.) That
draft of the law, as noted in Law Revision Commission’s report,
would have expanded the “next of kin” provision applicable to
medical treatment decisions in nursing homes to health care
decisions in other contexts. (2000 Health Care Decisions Law
and Revised Power of Attorney Law, at p. 18.) But legislators
could not agree, at that time, on the provisions governing who
could become a surrogate in the absence of any choice by the
patient or action by a court. (See 1 Zimring & Bashaw, Cal.
Guide to Tax, Estate & Financial Planning for the Elderly (2023
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
(§ 4712, added by Stats. 2022, ch. 782, § 2; 2000 Health Care
Decisions Law and Revised Power of Attorney Law, supra, 30
Cal. Law Revision Com. Rep. at p. 18.) Thus today, the health
care decisionmaker for an incapacitated patient is, first, a
patient-selected surrogate, second, a patient’s “agent pursuant
to an advance health care directive or a power of attorney for
health care,” third, a “conservator or guardian of the patient
having the authority to make health care decisions for the
patient,” and, fourth, a close family member or friend designated
by a health care provider or facility. (§ 4712, subds. (a), (b); see
also § 4643 [“ ‘Surrogate’ means an adult, other than a patient’s
agent or conservator, authorized under this division to make a
health care decision for the patient”].
The Legislature’s decision to invest in each of these four
categories of representatives the authority to make “health care
decisions” further suggests, whether or not the power of each
type of representative is fully equivalent, that the Legislature
intended the authority to make health care decisions to concern
matters more closely related to health care. The authority to
make health care decisions may devolve upon not only agents
carefully selected in advance, but also on surrogates the
principal chooses in emergency situations or even those the
health care provider chooses itself. Because the statute gives
both agents and as-needed surrogates authority to make health
care decisions, that authority, when exercised pursuant to a
power of attorney such as Logan’s, is not best understood as
§ 3.04.) Initially, then, the law simply allowed patients to
designate or disqualify surrogates, but did not set forth a process
for how next of kin might be selected for this role. (Former
§§ 4711, 4715.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
relating to every possible aspect of a transaction with a skilled
nursing facility, such as optional, separate agreements that do
not affect health care or the selection of the facility.11
B.
Agency Law
Defendants, the facility owners and operators, contend
Civil Code section 2319, part of our state’s law of agency, imbued
Logan’s health care decisionmaking agent with authority to
agree to arbitration. As noted above, where the Health Care
Decisions Law “does not provide a rule governing agents under
powers of attorney, the law of agency applies.” (§ 4688.) Since
1872, section 2319 of the Civil Code has conferred an agent with
authority “[t]o do everything necessary or proper and usual, in
the ordinary course of business, for effecting the purpose of his
agency.” (Civ. Code, § 2319, subd. (1).
Defendants assert selecting arbitration for dispute
resolution is a “proper and usual” act for someone otherwise
empowered to make health care decisions and to contract with
a health care provider. Civil Code section 2319, in defendants’
view, either provides guidance on the scope of “health care
decisions” otherwise missing from the Health Care Decisions
Law or counteracts any narrow construction of “health care
11
We may consult other indicia of legislative intent,
including legislative history or public policy, to derive a statute’s
meaning if statutory language, read in context, “permits more
than one reasonable interpretation.” (People v. Braden, supra,
14 Cal.5th at p. 804.) Here, neither defendants nor their
supporting amici curiae identify legislative history that casts
doubt on our proposed construction of “health care decision.”
Nor do their policy arguments about the general cost-savings
benefits of arbitration convince us to “ ‘strain to discern (because
we are not free to impose)’ ” a different meaning. (Bernard v.
Foley (2006) 39 Cal.4th 794, 814.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
decision” otherwise inherent in that law or Logan’s power of
attorney. Harrod disagrees, asserting there are no gaps in the
Health Care Decisions Law and there is nothing about an
optional, separate arbitration agreement that effectuates the
purpose of health care decisionmaking and Harrod’s agency.
Harrod’s view is closer to the mark.
Civil Code section 2319 embodies the notion of implied
authority — that an agent expressly granted a specific power
should have sufficient authority to effectuate it. (See Madden v.
Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706
(Madden) Robbins v. Pacific Eastern Corp. (1937) 8 Cal.2d 241,
285.) This rule is a longstanding feature of agency law. (Story,
Commentaries on the Law of Agency, as a Branch of Commercial
and Maritime Jurisprudence, with Occasional Illustrations
From the Civil and Foreign Law (8th ed., 1874) § 58, p. 71 (Story
on Agency); Reynolds, Bowstead & Reynolds on Agency (17th ed.
2001) ¶¶ 3–018, 3–019, p. 102; 1 Mechem, A Treatise on the Law
of Agency (2d ed. 1914) § 715, p. 502; Rest.3d Agency, § 2.02,
com. d and reporter’s note d.) The assumption is “the principal
does not wish to authorize what cannot be achieved if necessary
steps are not taken by the agent, and that the principal’s
manifestation often will not specify all steps necessary to
translate it into action.” (Rest.3d Agency, § 2.02, com. d.
The nature of the task delegated in a power of attorney
itself provides a limit on the powers to be implied. An agent
operating under a power of attorney may not “go beyond it nor
beside it, though it is competent for [the agent] to perform all
such subordinate acts as are usually incident to or necessary to
effectuate the object expressed. In order to bind the principal in
such case, it must appear that the act done by the agent was in
the exercise of the power delegated, and within its limits.”
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
(Blum v. Robertson, supra, 24 Cal. at p. 140.) Put another way,
an implied power “must be within the ultimate objective of the
principal . . . .’ ” (Garber v. Prudential Ins. Co. (1962) 203
Cal.App.2d 693, 701–702, quoting Rest.2d Agency, § 229, com.
B, p. 508.) The question is “whether the agent was engaged
strictly in an endeavor to bring about a result for which his
services were engaged.” (Garber, at p. 703.) “[G]eneral words
in powers of attorney are always limited by the express purposes
of the power” such that we have said if an agency may be “fully
performed without” an unenumerated power, that power will
not be viewed as within the agent’s purview. (Palomo v. State
Bar (1984) 36 Cal.3d 785, 794 & fn. 5.) To be implied, a power
would have to be “in pursuit of ‘the said services’ ” identified in
the power of attorney. (Ibid.
In Madden, a case defendants view as dispositive to our
agency analysis, we addressed the intersection of implied
agency, contracting for medical services, and arbitration. We
asked “whether an agent or representative, contracting for
medical services on behalf of a group of employees, has implied
authority to agree to arbitration of malpractice claims of
enrolled employees arising under the contract.” (Madden,
supra, 17 Cal.3d at p. 702.) We first noted that the Government
Code authorized a state retirement board “to negotiate contracts
for group medical plans for state employees” (id. at p. 705) and
required inclusion of “a grievance procedure to protect the rights
of the employees” (id. at p. 704). We concluded the board acted
as the agent of employees when negotiating contract terms
within the scope of its authority. (Id. at pp. 705–706; see Gov.
Code, § 22793 [empowering the board to contract for health
benefit plans].) Thus, the board could, under Civil Code section
2319, agree to things “proper and usual” to further that purpose.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
(Madden, at p. 706.) We then held that arbitration is a “ ‘proper
and usual’ means of resolving malpractice disputes” and that
the board, as an agent “empowered to negotiate a group medical
contract” for the state employees, could agree to an arbitration
clause. (Id. at p. 706.
Madden is distinguishable.12 There, a state board had
express power, pursuant to statute, to “negotiate contracts for
group medical plans” that included a “grievance procedure.”
Therefore, the state board, under agency law, could adopt proper
and usual means in pursuit of this contracting authority,
including choosing proper and usual terms for dispute
resolution, such as arbitration. In contrast to the statutory
grant of authority in Madden, the grant of power to Harrod in
this case, under a power of attorney for health care, did not
mention the power to broadly negotiate contracts or select a
12
Nor does the case Madden draws upon in explaining its
result, Doyle v. Giuliucci (1965) 62 Cal.2d 606, assist
defendants. (See Madden, supra, 17 Cal.3d at p. 708.) Doyle
concluded that a parent’s power to enter into a contract for
medical services on behalf of a child allows the parent to bind
the child to an arbitration provision included within that
contract. (Doyle, at pp. 607, 610.) No one contends that the
nephew-uncle relationship between Harrod and Logan is akin to
the parent-child relationship in Doyle, or that it implicates the
“right and duty” of parents, codified by statute, “to provide for
the care of [their] child.” (Doyle, at p. 610, citing Civil Code,
former § 196, and Penal Code, § 270; see Fam. Code, § 3900.
Doyle did not evaluate the meaning of a “health care decision”
that could be made by an agent, surrogate, or conservator,
absent such a special familial relationship. Nothing we say here
addresses whether any particular familial relationship would
itself convey authority to agree to arbitration with a skilled
nursing facility.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
dispute resolution method. Rather, it merely granted Harrod
the authority to make “health care decisions.”
If, under Madden, selecting arbitration as a contract term
serves the purpose of statutorily authorized contract
negotiation, choosing a dispute resolution method does not
similarly serve the purpose of making “health care decisions”
when that choice is contained in a side agreement with no
impact on health care or who administers it. The authority to
make health care decisions — here, the authority to obtain
skilled nursing care — could be “fully performed” without
reference to that side agreement. (Palomo v. State Bar, supra,
36 Cal.3d at p. 794 & fn. 5.) And accepting or rejecting that side
agreement could not be said to be “in pursuit of” (ibid.) or to
“effectuate” (Blum v. Robertson, supra, 24 Cal. at p. 140) a
health care decision. “The power” bestowed upon an agent “is to
be construed with reference to the subject-matter, and all the
words used in conferring it . . . .” (Beckman v. Wilson (1882) 61
Cal. 335, 336.) Thus, to the extent general agency principles
might aid us here in divining the scope of a health care decision
(see § 4688), we employ them consistently with what we have
gleaned from examining the Health Care Decisions Law and
Logan’s power of attorney on this subject. We remain mindful
that the Legislature, and in turn Logan, contemplated a “health
care decision” would concern personal decisions such as provider
and treatment selection.
Despite the different grants of authority at issue in
Madden and in cases involving the Health Care Decisions Law,
several Courts of Appeal have read Madden as supporting
defendants’ position that the power to make health care
decisions, under the law and powers of attorney invoking it, does
include the power to enter optional, separate arbitration
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HARROD v. COUNTRY OAKS PARTNERS, LLC
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agreements with health care providers. (Garrison v. Superior
Court, supra, 132 Cal.App.4th at p. 267; Hogan v. Country Villa
Health Services, supra, 148 Cal.App.4th at p. 267.) But having
reviewed the deep-seated agency principles governing implied
powers under powers of attorney and the Madden decision, and
having recognized the difference between the power to contract
delegated in Madden and the power to make health care
decisions delegated here, these Courts of Appeal appear to have
taken Madden farther than it and the law of agency should go
in this context.13 (See Logan v. Country Oaks Partners, LLC,
13
Garrison, and Hogan after it, cite other provisions of the
Health Care Decisions Law to support the result they reach,
noting a “combined effect” with the implied agency principles of
Civil Code section 2319. (Garrison, supra, 132 Cal.App.4th at
pp. 265–267; Hogan, supra, 148 Cal.App.4th at pp. 265–267.
But those other provisions do not bear on whether an agreement
to arbitrate is a health care decision. Probate Code section 4683,
subdivision (a), merely states an agent for health care decisions
may make them “to the same extent the principal could make”
them. This offers no definition of the critical term. Subdivision
(b) of that section allows an agent under a power of attorney for
health care to make decisions “that may be effective after
death.” But this, too, offers no guidance. Arbitration is hardly
best categorized as a decision effective after death. After all, an
agent would typically agree to arbitrate health care disputes
while the principal is still alive and in need of care, an
arbitration over health care might well take place while the
principal is still alive, and, as discussed (at p. 12, ante), under
the Health Care Decisions Law, these post-death decisions are
categorized separately from health care decisions and are
exemplified by approving organ donation, autopsies, disposition
of remains, and records releases — not matters such as
arbitration. Finally, Probate Code section 4684, in requiring an
agent to “make . . . health care decision[s] in accordance with a
principal’s individual health care instructions” or known wishes,
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HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
supra, 82 Cal.App.5th at p. 373 [“The holding in Madden is
inapplicable” as “[t]here is nothing . . . ‘necessary or proper and
usual’ about signing an optional arbitration agreement ‘for
effecting the purpose of [the] agency,’ i.e., placing [the principal]
into a skilled nursing facility”]; cf. Young v. Horizon West, Inc.
(2013) 220 Cal.App.4th 1122, 1129 [“to the extent” Garrison
broadly interpreted “health care decision” as including an
arbitration decision, “we disagree with its conclusion”].) We
therefore cannot, and do not, equate all agreements between a
patient and a health care facility, regardless of their
circumstances and their relation to obtaining health care, with
health care decisions.14
Having considered the meaning of a “health care decision”
within Logan’s power of attorney, in light of the Health Care
or otherwise, “in accordance with the agent’s determination of
the principal’s best interest,” likewise does not resolve the
matter. It states how health care decisions should be made, not
what they encompass.
14
Hogan, supra, 148 Cal.App.4th at p. 267, is correct that
Health and Safety Code section 1599.81, which prohibits
arbitration agreements from being a precondition to facility
admission, plainly contemplates that patients and long-term
health care facilities will enter into arbitration agreements. (Cf.
42 C.F.R. § 483.70(n) [imposing a similar rule on facilities
participating in Medicare and Medicaid].) Although section
1599.81 suggests the Legislature views arbitration agreements
as permissible in this context, it does not suggest the Legislature
viewed these arbitration agreements as health care decisions or
as effectuating such decisions, especially when presented as
unnecessary to a patient’s admission. Nor does the statute tell
us who the Legislature thought should have authority to agree
to arbitration. The statute and related federal regulations show,
if anything, a view of arbitration agreements as distinct from
decisions critical to receiving health care.
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HARROD v. COUNTRY OAKS PARTNERS, LLC
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Decisions Law and the Probate Code, we conclude that the most
reasonable construction of that term excludes the optional,
separate arbitration agreement with defendants. Resort to
agency law bolsters, rather than undermines, this conclusion.15
15
In doing so, we align California with the published
opinions of numerous other state courts that — after reviewing
powers of attorney formed under state statutes akin to the
Health Care Decisions Law — conclude an agreement to
arbitrate, particularly when optional and separate, is not a
health care decision within an agent’s power. (Coleman v.
United Health Services of Ga. (Ga.Ct.App. 2018) 812 S.E.2d 24,
26; Parker v. Symphony of Evanston Healthcare, LLC
(Ill.App.Ct. 2023) 220 N.E.3d 455, 463; Ping v. Beverly Enters.
(Ky. 2012) 376 S.W.3d 581, 592, 594; Johnson v. Kindred
Healthcare, Inc., supra, 2 N.E.3d at pp. 851–859; Dickerson v.
Longoria (Md. 2010) 995 A.2d 721, 731, 736–739; Primmer v.
Healthcare Indus. Corp. (Ohio Ct.App. 2015) 43 N.E.3d 788, 789,
795; Williams v. Smyrna Residential, LLC (Tenn., Feb. 16, 2024,
M2021-00927-SC-R11-CV) __ S.E.2d __ [2024 Tenn. LEXIS 44,
at *18]; Tex. Cityview Care Ctr., L.P. v. Fryer (Tex.Ct.App. 2007
227 S.W.3d 345, 349, 352–353; Miller v. Life Care Ctrs. of Am.,
Inc. (Wyo. 2020) 478 P.3d 164, 166–167, 172–173; cf. Koricic v.
Beverly Enters.– Neb., Inc. (Neb. 2009) 773 N.W.2d 145, 151
[agent with authority arising from practice of signing medical
documents was not empowered to execute optional arbitration
agreement]; Arredondo v. SNH SE Ashley River Tenant, LLC
(S.C. 2021) 856 S.E.2d 550, 557–558 [optional arbitration
agreement was not “necessary” to making health care decisions];
Lujan v. Life Care Centers of Am. (Colo.Ct.App. 2009) 222 P.3d
970, 973 [statutory surrogate for health care decisions could not
agree to optional arbitration]; Blankfeld v. Richmond Health
Care, Inc. (Fla.Dist.Ct.App. 2005) 902 So.2d 296 [same];
Mississippi Care Ctr. of Greenville, LLC v. Hinyub (Miss. 2008
975 So. 2d 211, 218 [same]; Gayle v Regeis Care Ctr., LLC
(N.Y.App.Div. 2021) 191 A.D.3d 598, 599–600 [same]; State ex
rel. AMFM, LLC v. King (W.Va. 2013) 740 S.E.2d 66, 72 [same].
One published opinion appears to take the opposite approach to
30

HARROD v. COUNTRY OAKS PARTNERS, LLC
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C.
Kindred
Defendants argue if we interpret, as we have, the term
“health care decision” in Logan’s power of attorney to exclude
the decision to accept an optional, separate arbitration
agreement, that decision would so disfavor arbitration as to
violate the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.
and, in particular, the high court’s decision in Kindred Nursing
Centers. L.P. v. Clark (2017) 581 U.S. 246, 250 (Kindred).) We
disagree.
powers of attorney and optional arbitration agreements.
(Moffett v. Life Care Ctrs. of Am. (Colo.Ct.App. 2008) 187 P.3d
1140, 1141–1142, 1147 [concluding the holder of a medical
durable power of attorney may, in selecting a long-term health
care facility, execute “applicable admissions forms” including an
optional arbitration agreement, but also noting that holder had
powers under a general power of attorney, and both powers of
attorney, which were not in the record, would need to be
reviewed on remand to see if they curtailed arbitration
authority], affirmed on other ground in Moffett v. Life Care Ctrs.
of America (Colo. 2009) 219 P.3d 1068, 1071 [declining to reach
“whether a person holding a medical durable power of attorney
is authorized to sign an arbitration agreement on behalf of an
incapacitated patient”].) A few others have reached a different
result based on powers of attorney with broader or different
language. (E.g., Ingram v. Chateau (Mo. 2019) 586 S.W.3d 772,
776 [because a voluntary arbitration agreement “was presented
in connection with Ingram’s admission to Brook Chateau, there
was no reason for Hall to doubt she had the authority to sign it
on Ingram’s behalf as part of her express ‘full authority’ ” under
a power of attorney to “move” Ingram into a residential care
facility].
Ultimately, the majority view better aligns with Logan’s
power of attorney, the arbitration agreement here, and
California’s Health Care Decisions Law and its law of agency.
31

HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
Congress enacted the FAA “in response to judicial hostility
to arbitration. Section 2 of the statute, by making arbitration
agreements ‘valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract,’ ” establishes an “ ‘an equal-treatment principle: A
court may invalidate an arbitration agreement based on
“generally applicable contract defenses” like fraud or
unconscionability, but not on legal rules that “apply only to
arbitration or that derive their meaning from the fact that an
agreement to arbitrate is at issue.” ’ ” (Viking River Cruises, Inc.
v. Moriana (2022) 596 U.S. 639, 649–650, quoting 9 U. S. C., § 2,
and Kindred, supra, 581 U.S. at p. 251.) When the FAA
applies — that is, when the contracting parties are sufficiently
involved in interstate commerce (see Allied-Bruce Terminix Cos.
v. Dobson (1995) 513 U.S. 265) — the FAA “preempts any state
rule discriminating on its face against arbitration” and
“displaces any rule that covertly accomplishes the same
objective by disfavoring contracts that (oh so coincidentally
have the defining features of arbitration agreements.” (Kindred,
at p. 251.
In Kindred, Kentucky’s Supreme Court had invalidated
two agent-signed arbitration agreements — in one instance,
where a power of attorney was plainly broad enough to give the
agent the power to sign, and in another instance, where this was
not so. (Kindred, supra, 581 U.S. at p. 250.) Regarding the
broader power of attorney, the state court held “an agent could
deprive her principal of an ‘adjudication by judge or jury’ only if
the power of attorney ‘expressly so provide[d],’ ” which it had
not. (Ibid.) In so holding, the state court emphasized the
“sacred,” “inviolate” nature of the jury-trial right. (Id. at p. 252.
The high court held that the FAA preempted this “clear-
32

HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
statement rule.” (Kindred, supra, 581 U.S. at pp. 251–254.
This rule, the high court reasoned, “hing[ed] on the primary
characteristic of an arbitration agreement — namely, a waiver
of the right to go to court and receive a jury trial.” (Id. at p. 252.
The high court found it telling that no other Kentucky court had
identified any other “ ‘fundamental constitutional rights’ held by
a principal” that, to be waived, required an explicit grant of
authority in a power of attorney. (Id. at p. 253.) As for the
Kentucky Supreme Court’s conjecture that its clear-statement
rule might require a principal’s explicit authorizations for an
agent to intrude on certain other fundamental rights — such as
by waiving a right to worship freely, or by arranging a
principal’s marriage or binding the principal to servitude — the
high court called such examples “patently objectionable and
utterly fanciful.” (Id. at p. 253.) It concluded that placing the
choice to arbitrate alongside these other decisions evidenced an
impermissible “ ‘hostility to arbitration’ ” because of its nature.
(Id. at p. 254.) Accordingly, the high court reversed the
Kentucky Supreme Court as to the broad power of attorney and
ordered arbitration. Regarding the narrower power of attorney,
however, the high court remanded, reasoning that if the
interpretation of the narrower power of attorney was “wholly
independent of the . . . clear-statement rule, then nothing we
have said disturbs it.”16 (Kindred, supra, 581 U.S. at p. 256.
Assuming the FAA applies here, Kindred does not
“disturb” our conclusions regarding the scope of a health care
16
On remand, the Kentucky Supreme Court determined the
clear-statement rule had played no role in its decision and left
its previous decision, denying arbitration, in place. (Kindred
Nursing Centers L.P. v. Wellner (Ky. 2017) 533 S.W.3d 189, 194.
33

HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
agent’s powers. For instance, we have not revisited the holding
in Madden, supra, 17 Cal.3d at page 706, that arbitration, if
agreed to, is a “ ‘proper and usual’ means of resolving
malpractice disputes.” A principal or any properly authorized
agent may, under Madden, agree to arbitration. What we
conclude is that a “health care decision,” under our Health Care
Decisions Law and Logan’s power of attorney for health care,
excludes an optional, separate agreement that does not
accomplish health care objectives. This outcome does not
emerge from or reflect hostility towards arbitration. Nor does it
depend on a clear-statement rule. Rather, it derives from the
scope of the health care decisionmaking power Logan granted to
Harrod — as determined from generally applicable legal
principles — and the conclusion that agreeing to an optional,
separate arbitration agreement with a skilled nursing facility is
not a health care decision. (See Garcia v. KND Development 52,
LLC (2020) 58 Cal.App.5th 736, 747 [discussing Kindred’s
inapplicability when court relied on “generally applicable law”].
Logan himself could have agreed to arbitration, whether before
or after any dispute arose. Likewise, any agent of Logan
operating under a broader power of attorney, whether that
power of attorney contained a clear statement of the power to
agree to arbitration or utilized more general language
encompassing that power, might have bound Logan to arbitrate.
Logan’s power of attorney here, however, did not make Harrod
such an agent.
34

HARROD v. COUNTRY OAKS PARTNERS, LLC
Opinion of the Court by Jenkins, J.
III. DISPOSITION
We affirm the judgment of the Court of Appeal.17
JENKINS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
17
We disapprove Garrison v. Superior Court, supra, 132
Cal.App.4th 253 and Hogan v. Country Villa Health Services,
supra, 148 Cal.App.4th 259 to the extent they are inconsistent
with this opinion.
35

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Harrod v. Country Oaks Partners, LLC

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 82 Cal.App.5th 365
Review Granted (unpublished)
Rehearing Granted

Opinion No. S276545
Date Filed: March 28, 2024

Court: Superior
County: Los Angeles
Judge: Monica Bachner

Counsel:
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport; Buchalter,
Harry W.R. Chamberlain II, Robert M. Dato; Sun Mar Management
Services, Trent Evans, Kevin Khachatryan, Julieta Y. Echeverria and
Brittany A. Ortiz for Defendants and Appellants.
Tucker Ellis and Traci L. Shafroth for California Medical Association,
California Dental Association and California Hospital Association as
Amici Curiae on behalf of Defendants and Appellants.
Hooper, Lundy & Bookman, Mark E. Reagan and Jeffrey Lin for
California Association of Health Facilities as Amicus Curiae on behalf
of Defendants and Appellants.
Carroll, Kelly, Trotter & Franzen, David P. Pruett; and Fred J.
Hiestand for the Association of Southern California Defense Counsel
and the Civil Justice Association of California as Amici Curiae on
behalf of Defendants and Appellants.

Lanzone Morgan, Ayman R. Mourad, Alexander S. Rynerson, Suzanne
M. Voas; BraunHagey & Borden, Matthew Borden and Kory J.
DeClark for Plaintiff and Respondent.
Stiller Law Firm and Ari J. Stiller for Consumer Attorneys of
California, Compassion & Choices, American Association for Justice
and Public Justice as Amici Curiae on behalf of Plaintiff and
Respondent.
William Alvarado Rivera; and Eric M. Carlson for AARP, AARP
Foundation, Justice in Aging, California Advocates for Nursing Home
Reform, California Long-Term Care Ombudsman Association and The
National Consumer Voice for Quality Long-Term Care as Amici Curiae
on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Harry W.R. Chamberlain II
Buchalter, A Professional Corporation
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017
(213) 891-5115
Mark E. Reagan
Hooper, Lundy & Bookman, P.C.
44 Montgomery Street, Suite 3500
San Francisco, CA 94104
(415) 875-8501
Matthew Borden
BraunHagey & Borden LLP
351 California Street, 10th Floor
San Francisco, CA 94104
(415) 599-0210

Huerta v. CSI Electrical Contractors

admin — Mon, 25 Mar 2024 17:23:36 +0000

IN THE SUPREME COURT OF
CALIFORNIA
GEORGE HUERTA,
Plaintiff and Appellant,
v.
CSI ELECTRICAL CONTRACTORS,
Defendant and Respondent.
S275431
Ninth Circuit
21-16201
Northern District of California
5:18-cv-06761-BLF
March 25, 2024
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.

HUERTA v. CSI ELECTRICAL CONTRACTORS
S275431
Opinion of the Court by Liu, J.
Industrial Welfare Commission (IWC) wage order No. 16-
2001 (Wage Order No. 16) governs wages, hours, and working
conditions in the construction, drilling, logging, and mining
industries. (Cal. Code Regs., tit. 8, § 11160.) It entitles certain
employees in these industries to at least minimum wage
compensation for “hours worked.” (Id., § 11160, subd. 4(B); see
id., § 11160, subd. 2(J).
We granted a request from the United States Court of
Appeals for the Ninth Circuit to answer three questions about
Wage Order No. 16 and the scope of the term “hours worked.”
First: “Is time spent on an employer’s premises in a personal
vehicle and waiting to scan an identification badge, have
security guards peer into the vehicle, and then exit a Security
Gate compensable as ‘hours worked’ within the meaning of . . .
Wage Order No. 16?” (Huerta v. CSI Electrical Contractors, Inc.
(9th Cir. 2022) 39 F.4th 1176, 1177 (Huerta).) Second: “Is time
spent on the employer’s premises in a personal vehicle, driving
between the Security Gate and the employee parking lots, while
subject to certain rules from the employer, compensable as
‘hours worked’ or as ‘employer-mandated travel’ within the
meaning of . . . Wage Order No. 16?” (Ibid.) And third: “Is time
spent on the employer’s premises, when workers are prohibited
from leaving but not required to engage in employer-mandated
activities, compensable as ‘hours worked’ within the meaning of
. . . Wage Order No. 16, or under California Labor Code Section
1

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
1194, when that time was designated as an unpaid ‘meal period’
under a qualifying collective bargaining agreement?” (Ibid.
We answer these questions as follows: First, an
employee’s time spent on an employer’s premises awaiting and
undergoing an employer-mandated exit procedure that includes
the employer’s visual inspection of the employee’s personal
vehicle is compensable as “hours worked” within the meaning of
Wage Order No. 16, section 2(J).
Second, the time that an employee spends traveling
between the Security Gate and the employee parking lots is
compensable as “employer-mandated travel” under Wage Order
No. 16, section 5(A) if the Security Gate was the first location
where the employee’s presence was required for an employment-
related reason other than the practical necessity of accessing the
worksite. Separately, this travel time is not compensable as
“hours worked” because an employer’s imposition of ordinary
workplace rules on employees during their drive to the worksite
in a personal vehicle does not create the requisite level of
employer control.
Third, when an employee is covered by a collective
bargaining agreement that complies with Labor Code section
512, subdivision (e) and Wage Order No. 16, section 10(E), and
provides the employee with an “unpaid meal period,” that time
is nonetheless compensable under the wage order as “hours
worked” if the employer prohibits the employee from leaving the
employer’s premises or a designated area during the meal period
and if this prohibition prevents the employee from engaging in
otherwise feasible personal activities. An employee may bring
an action under Labor Code section 1194 to enforce the wage
order and recover unpaid wages for that time.
2

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
I.
The California Flats Solar Project (the Site) is a solar
power facility located on privately owned land in Monterey and
San Luis Obispo Counties. First Solar Electric, Inc. (First Solar
owns the facility. A subcontractor hired George Huerta (Huerta
and other workers to assist CSI Electrical Contractors (CSI), the
company providing “procurement, installation, construction,
and testing services” at the Site.
A designated road provided access between a guard shack
located at the Site’s perimeter and the employee parking lots. A
security gate (Security Gate) was located on that road several
miles from the guard shack; from the Security Gate, it would
take Huerta approximately 10 to 15 minutes to reach the
parking lots. Huerta underwent security checks at the Security
Gate and was told by CSI management that this gate was the
“first place” he had to be at the beginning of the workday.
In the morning, vehicles formed a long line outside the
Security Gate, where guards scanned each worker’s badge and
sometimes peered inside vehicles and truck beds. At the end of
the day, workers again formed a long line inside the Security
Gate, where the exit procedure took place. The exit procedure
could take up to a minute or more per vehicle and caused delays
of five to over 30 minutes. CSI told Huerta that security guards
had the right to search vehicles during the entry and exit
processes, and the guards visually inspected the bed of his truck
for stolen tools or endangered species. Huerta was not paid for
the time he spent waiting to pass through the Security Gate at
the beginning or end of the workday.
Because two endangered species were present near the
Site, the Department of Fish and Wildlife required First Solar
3

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
to obtain an Incidental Take Permit (ITP) before work could
begin on the project. The ITP imposed a speed limit of 20 miles
per hour on the access road between the guard shack and the
parking lots, and restricted the roads that could be taken at the
Site. It also required a biologist to monitor the Site to minimize
disturbances to species’ habitats. As part of this monitoring, the
biologist each morning ensured that the road between the guard
shack and the parking lots was clear of endangered species
before anyone could enter the Site. On some occasions, this
clearing process added to the time Huerta spent waiting in line
to enter the worksite in the morning.
As First Solar’s subcontractor, CSI was required to abide
by the ITP and was required to ensure that its employees did as
well. After passing through the Security Gate each morning,
Huerta was subject to the rules imposed by the ITP in addition
to other rules governing his conduct. CSI required adherence to
speed limits between five and 20 miles per hour; restricted
travel to driving on the access road to reach the Site, thereby
prohibiting employees from driving on other roads near the Site
or walking or biking from the Security Gate to the parking lots;
and prohibited employees from honking their horns, playing
music that could be heard outside of their vehicles, or otherwise
disturbing local wildlife. Violation of these rules or other Site
rules could result in suspension or termination. Huerta was not
paid for the time he spent driving between the Security Gate
and the employee parking lots.
Huerta’s employment was governed by two collective
bargaining agreements (CBAs), which specified that the
standard workday included an unpaid 30-minute meal period.
CSI did not allow workers to leave the Site during the workday
and instructed workers to spend their meal periods at a
4

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
designated area near their assigned worksite (Installation Site).
In accordance with the CBAs, Huerta was not paid for his meal
periods.
Huerta filed a wage and hour class action in the Superior
Court of Monterey County on behalf of himself and all others
similarly situated against CSI, seeking payment for unpaid
hours worked. The suit was removed to the United States
District Court for the Northern District of California. The
district court granted Huerta’s motion for class certification.
CSI then filed a motion for partial summary judgment on the
class claims Huerta raised in his first amended complaint; that
motion was granted by the district court. CSI filed a second
motion for partial summary judgment on the class claim that
survived the first motion for partial summary judgment. This
second motion was also granted. Huerta timely appealed the
orders granting CSI’s motions to the Ninth Circuit, which
certified to us the questions stated above.
II.
“The [IWC] was established more than a century ago ‘to
fix minimum wages, maximum hours of work, and standard
conditions of labor.’ ” (Frlekin v. Apple Inc. (2020) 8 Cal.5th
1038, 1045 (Frlekin).) To achieve this goal, the IWC formulated
a series of regulations known as wage orders. (See Hernandez
v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 136–137
(Hernandez).) These industry- and occupation-wide orders
specify “minimum requirements with respect to wages, hours,
and working conditions.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1026 (Brinker).
Wage Order No. 16 applies to employees like Huerta who
work in certain “on-site occupations” in the construction,
5

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
drilling, logging, and mining industries. (Cal. Code Regs., tit. 8,
§ 11160, subd. 1.) Section 4 of Wage Order No. 16 sets a
minimum wage at which employees will be compensated for
“hours worked.” (Cal. Code Regs., tit. 8, § 11160, subd. 4.
“ ‘Hours worked’ ” is defined in Wage Order No. 16, section 2(J
as “the time during which an employee is subject to the control
of an employer, and includes all the time the employee is
suffered or permitted to work, whether or not required to do so.”
(Cal. Code Regs., tit. 8, § 11160, subd. 2(J); see Morillion v.
Royal Packing Co. (2000) 22 Cal.4th 575, 581 (Morillion) [“All
15” of the wage orders in effect at the time “contain the same
definition of ‘hours worked’ . . . , except for IWC wage order
Nos. 4–89 and 5–89, which include additional language.”].
We have explained that the two clauses of the “hours
worked” definition — the control clause and the suffered or
permitted to work clause — “establish ‘independent factors,
each of which defines whether certain time spent is compensable
as “hours worked.” ’ ” (Frlekin, supra, 8 Cal.5th at p. 1046,
quoting Morillion, supra, 22 Cal.4th at p. 582.) “Thus, an
employee who is subject to the control of an employer does not
have to be working during that time to be compensated under
the applicable wage order. ([Morillion, at p. 582].) Likewise, an
employee who is suffered or permitted to work does not have to
be under the employer’s control to be compensated, provided the
employer has or should have knowledge of the employee’s work.”
(Frlekin, at p. 1046, italics omitted.
A.
The Ninth Circuit asks whether time an employee spends
on his employer’s premises waiting in his personal vehicle to
scan an identification badge and have a security guard peer into
6

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
his vehicle before exiting a Security Gate is compensable as
“hours worked.” We hold that it is.
In Frlekin, the Ninth Circuit asked us to resolve a similar
question: whether time that Apple employees spent on Apple’s
premises “waiting for, and undergoing, required exit searches of
packages, bags, or personal technology devices voluntarily
brought to work purely for personal convenience by employees”
is compensable as “ ‘hours worked.’ ” (Frlekin, supra, 8 Cal.5th
at p. 1042.) In answering yes, we conducted a “strictly textual
analysis” of the control clause, which led us to conclude that
“Apple employees are clearly under Apple’s control while
awaiting, and during, the exit searches.” (Id. at p. 1047; see
ibid., citing Bono Enterprises, Inc. v. Bradshaw (1995) 32
Cal.App.4th 968, 974–975 (Bono), disapproved on other grounds
in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14
Cal.4th 557, 574.) Apple’s control of its employees during the
time they spent “awaiting, and during, the exit searches” was
evidenced by Apple’s requirement that “its employees
. . . comply with the bag-search policy under threat of discipline,
up to and including termination”; its confinement of employees
to the premises while they waited to undergo an exit search; and
its requirement that employees “perform specific and supervised
tasks while awaiting and during the search,” including “locating
a manager or security guard and waiting for that person to
become available, unzipping and opening all bags and packages,
moving around items within a bag or package, removing any
personal Apple technology devices for inspection, and providing
a personal technology card for device verification.” (Frlekin, at
p. 1047.
Apple argued that the exit searches were not compensable
because Apple employees could avoid them “by choosing not to
7

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
bring a bag, package, or personal Apple technology device to
work.” (Frlekin, supra, 8 Cal.5th at p. 1049.) We rejected this
argument along with Apple’s contention that the employee’s
activity, to be compensable under the control clause, must be
“ ‘required’ and ‘unavoidable.’ ” (Id. at p. 1048.) “Redefining the
control clause to cover only unavoidably required employer-
controlled activities would limit the scope of compensable
activities, resulting in a narrow interpretation at odds with the
wage order’s fundamental purpose of protecting and benefitting
employees.” (Ibid.) We reaffirmed “that ‘[t]he level of the
employer’s control over its employees, rather than the mere fact
that the employer requires the employees’ activity, is
determinative’ concerning whether an activity is compensable
under the ‘hours worked’ control clause.” (Id. at p. 1056, quoting
Morillion, supra, 22 Cal.4th at p. 587.) Nonetheless, an
activity’s mandatory nature “remains probative in determining
whether an employee is subject to the employer’s control,” along
with other factors such as the location of the activity, the degree
of the employer’s control, whether the activity primarily benefits
the employee or employer, and whether the activity is enforced
through disciplinary measures. (Frlekin, at p. 1056.
California courts have not addressed whether “time spent
on the employer’s premises, in a personal vehicle, waiting for
and undergoing an exit process” that includes a vehicle
inspection causing delay is compensable under the control
clause. (Huerta, supra, 39 F.4th at p. 1180.) This case, like
Frlekin, involves time spent on the employer’s premises by
employees awaiting an exit security procedure that included a
search. The fact that an employee awaits and undergoes the
exit process while in his personal vehicle does not necessarily
transform that time into commuting time, nor does it foreclose
8

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
an employer’s ability to exert control over its employee. An
employee in his personal vehicle may be subject to his
employer’s control within the meaning of the wage order if
sufficient indicia of control are present. The inquiry we
undertook in Frlekin applies equally here.
We conclude that under the indicia of employer control
identified in Frlekin, Huerta was subject to CSI’s control “while
awaiting, and during,” the exit security procedure even though
he was in his personal vehicle during that time. (Frlekin, supra,
8 Cal.5th at p. 1047.) Like the employees in Frlekin, Huerta was
required to wait for and undergo the exit security procedure
before leaving the Site. Whereas the bag search in Frlekin was
practically mandatory because employees could only avoid it by
not bringing personal technology items to work, compliance with
CSI’s exit procedure was strictly required for every employee.
(Id. at pp. 1054, 1056 [mandatory nature of activity is
probative].) Further, like the employees in Frlekin, Huerta
remained confined to the employer’s premises until he
completed the exit procedure; the procedure was thus an “onsite
employer-controlled activit[y].” (Id. at p. 1056; see id. at p. 1051
[an employer’s level of control is “greater in the context of an
onsite search”]; Mendiola v. CPS Security Solutions, Inc. (2015
60 Cal.4th 833, 840 (Mendiola) [“ ‘ “[W]hen an employer directs,
commands or restrains an employee from leaving the work place
. . . and thus prevents the employee from using the time
effectively for his or her own purposes, that employee remains
subject to the employer’s control.” ’ ”].
In addition, Huerta was required to perform “specific and
supervised tasks” as part of the exit procedure: he had to drive
his vehicle to the Security Gate, wait in his vehicle until it was
his turn to undergo the security check, roll down his window and
9

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
present his security identification badge to the guard, and
submit his vehicle to visual inspection and possible physical
search. (Frlekin, supra, 8 Cal.5th, at p. 1047; see id. at p. 1051
[describing the “specific actions and movements” required of
employees to comply with Apple’s bag search policy].) Finally,
CSI’s requirement that Huerta undergo the exit procedure was
primarily in service of its own interests. (See Frlekin, supra, 8
Cal.5th at pp. 1052–1053.) CSI was bound by its contract with
First Solar to comply with various health, safety, and
environmental protection protocols, and it took an active role in
enforcing those protocols, including through the exit procedure.
In addition to ensuring that only badged workers entered and
exited the Site each day, CSI also had an interest in preventing
the theft of tools and endangered species from the premises. CSI
therefore had a significant interest in ensuring compliance with
its exit procedure.
CSI contends that unlike the security search in Frlekin,
the exit procedure here is “strictly for the purposes of ingress
and egress.” The procedure, CSI says, is akin to “stopping at a
gate at a parking garage to exit, which also requires the mere
lowering of the window, reaching out of an arm, and scanning a
card in order to cause the gate to rise,” “swiping a card or using
a key to unlock a door to exit the employer’s building,” or
“flashing an identification card to bypass a security line.”
This description does not capture the scope of the exit
procedure or CSI’s interest in it. As detailed in the Site’s
security plan, the procedure not only requires employees to
present their badges for inspection and scanning; it also involves
inspection of “back seats, back of trucks, and periodically . . .
trunks of cars” by a security guard. The procedure requires the
employment of personnel specifically tasked with “consistently
10

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
inspect[ing] any vehicle that has entered the project site upon
exiting” to match the badge or badges presented by the driver to
the individual or individuals in the vehicle and to check for
stolen items or endangered species. The fact that security
workers were employed to operate the Security Gate and
conduct inspections — in lieu of security cameras or an
automated gate that would open after “the mere lowering of the
window, reaching out of an arm, and scanning a card” — is
evidence that the exit process involved more than facilitation of
ingress and egress.
To be sure, the CSI exit protocol is not as intrusive as the
search in Frlekin. But the fact that the procedure itself could
take up to a minute or more per vehicle suggests that CSI’s
inspections extended beyond the time necessary to simply scan
a badge. It is also evidence that the procedure prolonged the
time required for workers to exit the Site beyond what would
result from ordinary traffic congestion at the end of the
workday. We note that California’s wage and hour statutes do
not incorporate the federal de minimis doctrine and do not
“excuse the payment of wages for small amounts of otherwise
compensable time upon a showing that the bits of time are
administratively difficult to record.” (Troester v. Starbucks
Corp. (2018) 5 Cal.5th 829, 835; id. at p. 847 [“a few extra
minutes of work each day can add up”].
We thus hold that when an employee spends time on his
employer’s premises awaiting and undergoing an exit security
procedure that includes a vehicle inspection causing delay and
that is mandated by the employer for its own benefit, the
employee — even when in his personal vehicle — is subject to
the employer’s control, and the time is compensable as “hours
worked” within the meaning of Wage Order No. 16.
11

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
B.
Next: “Is time spent on the employer’s premises in a
personal vehicle, driving between the Security Gate and the
employee parking lots, while subject to certain rules from the
employer, compensable as ‘hours worked’ or as ‘employer-
mandated travel’ . . . ?” (Huerta, supra, 39 F.4th at p. 1177.) We
hold that the time may be compensable as “employer-mandated
travel” but is not compensable as “hours worked.”
1.
In determining whether this drive time is compensable as
“employer-mandated travel” under Wage Order No. 16, section
5(A), we apply “the usual rules of statutory interpretation.”
(Brinker, supra, 53 Cal.4th at p. 1027.) Because IWC wage
orders, like the provisions of the Labor Code, “ ‘have long been
viewed as part of the remedial worker protection framework’ ”
(Brinker, at p. 1027), we interpret these orders “so as to promote
employee protection” (Mendiola, supra, 60 Cal.4th at p. 840; see
Brinker, at pp. 1026–1027) and to benefit employees (see
Frlekin, supra, 8 Cal.5th at p. 1045).
Wage Order No. 16, section 5(A) says: “All employer-
mandated travel that occurs after the first location where the
employee’s presence is required by the employer shall be
compensated at the employee’s regular rate of pay or, if
applicable, the premium rate . . . .” (Cal. Code Regs., tit. 8,
§ 11160, subd. 5(A).) Huerta urges a literal construction of the
phrase “the first location where the employee’s presence is
required” and contends that because CSI management told him
that the Security Gate was the “first place” he had to be at the
beginning of the workday, his drive from the Security Gate to
the employee parking lots is compensable as “employer-
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mandated travel.” Huerta also relies on declarations from other
employees on this point.
In response, CSI contends that a location does not qualify
as “the first location where the employee’s presence is required
by the employer” within the meaning of the wage order “just
because an employer’s premises can be accessed only from one
point, and the employee is ‘required’ to stop there before starting
work.” If this were the case, CSI argues, employees would be
entitled to compensation under Wage Order No. 16, section 5(A
for any travel occurring after passing through “any gate, front
door, or other entrance.” CSI urges us to interpret the phrase to
refer to “the very common situation where employees must
gather at a certain location, and then are required to travel
again to another location.”
As the Ninth Circuit explained, “[i]t is true that there was
at least a de facto required arrival time to be at the [Security]
Gate for entry and exit: Workers had to sign in at the parking
lots before their shift started; there was a strictly enforced speed
limit on the only road between the Gate and parking lot; CSI
knew how long the drive took; the Gate did not open until a
certain time each morning; and CSI ‘gave workers a scheduled
time when [they] could enter’ the site, which sometimes was
delayed; which taken together indicates CSI and the workers
knew the Gate arrival time was de facto required for workers to
begin or end their shifts on time. [¶] But de facto arrival times
do not always signify that the drive was employer-mandated,
compensable travel. Standard commutes need not be
compensated in California, . . . during which there are always
de facto required arrival times for locations unrelated to the
employer.” (Huerta, supra, 39 F.4th at p. 1184, citation
omitted.
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The Statement as to the Basis for Wage Order No. 16
explains that section 5(A) was adopted with “compromise
language proposed by employee and employer representatives.”
(IWC, Statement as to the Basis for Wage Order No. 16
Regarding Certain On-site Occupations in the Construction,
Drilling, Mining, and Logging Industries (Jan. 2001) p. 10
(Statement as to the Basis for Wage Order No. 16).) In
describing section 5(A), the statement reproduces the section’s
text and then cites Morillion. (Statement as to the Basis for
Wage Order No. 16, supra, at p. 10.) In Morillion, we considered
whether time spent by agricultural employees traveling to and
from the worksite on employer-provided buses was compensable
as “hours worked.” (Morillion, supra, 22 Cal.4th at p. 578.) The
employees were required to meet at a designated departure
point at a certain time to catch a bus to the fields where they
worked. (Id. at p. 579.) They sought compensation for time “(1
assembling at the [bus’s] departure points; (2) riding the bus to
the fields; (3) waiting for the bus at the end of the day; and (4
riding the bus back to the departure points.” (Ibid.) We referred
to this as “compulsory travel time,” meaning time spent
traveling “to and from a work site that an employer controls and
requires.” (Id. at p. 579 & fn. 2.) We concluded that this
compulsory travel time was compensable as “hours worked”
under the control clause because the employer “ ‘ “direct[ed]” ’
and ‘ “ command[ed]” ’ ” the plaintiffs to “travel between the
designated departure points and the fields” on the employer’s
buses. (Id. at p. 587.) We distinguished such travel time from
“an ordinary commute from home to work and back that
employees take on their own,” which is not compensable. (Id. at
p. 580, fn. 2.
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Morillion did not assess whether the employees’ time was
compensable as “employer-mandated travel,” a term unique to
Wage Order No. 16. And in adopting Wage Order No. 16,
section 5(A), the IWC did not tether the term “employer-
mandated travel” to the employer’s control over that employee
during the travel time, as it did for the term “hours worked.”
(Cal. Code Regs., tit. 8, § 11160, subd. 2(J).) Rather, the IWC
elected to make compensation for “employer-mandated travel”
turn on whether the employer mandates travel to a second
location “after the first location where the employee’s presence
is required.” (Id., § 11160, subd. 5(A).
We reject CSI’s interpretation of “first location” as unduly
restrictive. Although the IWC Statement as to the Basis for
Wage Order No. 16 cites Morillion, there is no indication that
the IWC intended to limit the applicability of Wage Order No.
16, section 5(A) to a scenario where employees are required to
gather before traveling elsewhere. In addition, for time to be
compensable as “employer-mandated travel,” an employee need
not be subject to the employer’s control during the travel. The
travel need only have occurred at the direction and command of
the employer after the employee’s arrival at the “first location”
where the employer required the employee’s presence. This
much is clear from the text of section 5(A).
At the same time, we agree with CSI that a location does
not qualify as “the first location where the employee’s presence
is required by the employer” within the meaning of the wage
order “just because an employer’s premises can be accessed only
from one point, and the employee is ‘required’ to stop there
before starting work.” In circumstances where an employee
must use a single entrance to the employer’s premises, it could
be said that the employee’s “presence” is, as a matter of practical
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Opinion of the Court by Liu, J.
necessity, “required by the employer” at that entrance before
entering work. (Cal. Code Regs., tit. 8, § 11160, subd. 5(A).) But
this literalism does not align with the notion of being required
by the employer — purposefully, not just circumstantially — to
report to a specific location before subsequent employer-
mandated travel. What the Ninth Circuit called “de facto arrival
times” (Huerta, supra, 39 F.4th at p. 1184) do not demarcate
“the first location where the employee’s presence is required by
the employer” under Wage Order No. 16, section 5(A). Were it
otherwise, our reading of the wage order would be at odds with
the rule that ordinary commuting, for which “there are always
de facto required arrival times for locations unrelated to the
employer” (Huerta, at p. 1184), “is not generally compensable”
(Frlekin, supra, 8 Cal.5th at p. 1051).
We hold that an employee’s presence at a location is
“required by the employer” within the meaning of the wage
order when it is required for an employment-related reason
other than the practical necessity of reaching the worksite.
Examples include situations where an employee’s presence at
an initial location is required to pick up work supplies, receive
work orders or other directives, or perform work before traveling
to a second jobsite. (See Griffin v. Sachs Electric Co. (N.D.Cal.
2019) 390 F.Supp.3d 1070, 1097, affd. mem. (9th Cir. 2020
831 Fed.Appx. 270 [citing Burnside v. Kiewit Pacific Corp. (9th
Cir. 2007) 491 F.3d 1053, 1056, 1070, and reasoning that
requiring an employee to be present at a designated site to
receive instructions and retrieve equipment are “indicative” of
employer requirements that would render travel time
compensable under Wage Order No. 16, § 5(A)].
This reading is supported by material presented to the
IWC during the public hearings that informed the adoption of
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Opinion of the Court by Liu, J.
Wage Order No. 16. (See Murphy v. Kenneth Cole Productions,
Inc. (2007) 40 Cal.4th 1094, 1109–1110 [favorably discussing
reliance on IWC hearing statements].) A representative of the
State Building and Construction Trades Council explained that
compensating employees for “employer-mandated travel” as
provided in Wage Order No. 16, section 5(A) is “extremely
important in the construction industry” because employees may
be told to report to work at a particular job site, work at that site
for a few hours, and then be asked to report to a second job site.
(IWC public hg. transcript (Aug. 17, 2000) www.dir.ca.gov/IWC/Pubmtg08172000.htm> [as of March 25,
2024]; this citation is archived by year, docket number, and case
name at .) Such a
scenario more closely resembles the circumstances in Morillion,
where the employees were required to arrive at designated
departure points at certain times to travel to their worksites,
than the “de facto arrival times” (Huerta, supra, 39 F.4th at
p. 1184) that arise when employees out of practical necessity
must arrive at certain locations in order to reach their worksite.
Nothing in the IWC’s public hearings suggests that section 5(A
was intended to apply to the latter scenario.
On the record before us, we express no view on whether
the Security Gate was “the first location” where Huerta’s
presence was required by CSI such that his travel time between
the Security Gate and the employee parking lots is compensable.
On one hand, declarations by Huerta and other employees
indicate that CSI told them the Security Gate was “the first
place” they had to be at the beginning of the workday. It appears
undisputed that workers were not allowed to enter the access
road between the Security Gate and the employee parking lots
until a biologist cleared the road each day and security guards
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Opinion of the Court by Liu, J.
scanned their identification badges, which Huerta says caused
five- to 20-minute delays entering the Security Gate in the
morning. This could support the view that CSI required
employees’ presence at the Security Gate for a purpose other
than accessing the worksite, i.e., ensuring compliance with CSI’s
security and environmental protection protocols. On the other
hand, CSI offered evidence contradicting these allegations,
including declarations from workers stating that CSI did not
instruct them that the Security Gate was the first location that
their presence was required and that they never observed delays
in the morning. CSI also observes, and it appears undisputed,
that passage through the Security Gate is practically necessary
in order to reach the employee parking lots; there is no other
access road.
In sum, for travel time to be compensable under Wage
Order No. 16, section 5(A), there must be evidence not only that
the employer required the employee’s presence at an initial
location before mandating travel to a subsequent location, but
also that the employee’s presence was required for an
employment-related reason other than accessing the worksite.
An employee’s declaration that the employer required him to be
present at an entrance gate to access the worksite is insufficient
by itself to meet this standard. Here, whether the Security Gate
is “the first location” within the meaning of the wage order turns
on whether Huerta’s presence there was required by CSI for an
employment-related reason other than the practical necessity of
accessing the worksite, as well as the nature of any such reason.
Relevant considerations include, but are not limited to, what
purpose is served by the employee’s presence at the location,
what activities occur there, and how much time is spent there.
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Opinion of the Court by Liu, J.
2.
We next consider “whether driving on an employer’s
premises, in a personal vehicle, before or after a shift, while
subjected to an employer’s rules, is compensable as ‘hours
worked’ ” (Huerta, supra, 39 F.4th at p. 1183), first under the
control clause and then under the suffer or permit to work clause
(Cal. Code Regs., tit. 8, § 11160, subd. 2(J)).
CSI relies on the high court’s interpretation of the Fair
Labor Standards Act of 1938 (FLSA) (29 U.S.C. § 201 et seq.) in
Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680 and on
the Portal-to-Portal Act of 1947 (29 U.S.C. § 251 et seq.) to argue
that time spent traveling on an employer’s premises before or
after work is not generally compensable. Congress passed the
FLSA in 1938. (Pub.L. No. 75-718 (June 25, 1938) 52 Stat. 1060;
see also 29 U.S.C. § 201 et seq.) Among other provisions, the act
set a federal minimum wage and rules for overtime
compensation, but it did not define the statutory terms “work”
or “workweek.” (See 29 U.S.C. §§ 203 [definitions], 206
[minimum wage], 207 [maximum hours].) In its early cases
interpreting the act, the high court construed those terms
broadly. It defined “work” to mean “physical or mental exertion
(whether burdensome or not) controlled or required by the
employer and pursued necessarily and primarily for the benefit
of the employer and his business.” (Tennessee Coal Co. v.
Muscoda Local (1944) 321 U.S. 590, 598.) And it defined
“workweek” to include “all time during which an employee is
necessarily required to be on the employer’s premises, on duty
or at a prescribed workplace, the time spent in these activities
must be accorded appropriate compensation.” (Anderson, supra,
328 U.S. at pp. 690–691.) “Applying these expansive definitions,
the Court found compensable the time spent traveling between
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mine portals and underground work areas, Tennessee Coal,
[supra, 321 U.S. at p. 598], and the time spent walking from
timeclocks to workbenches, Anderson, [supra, 328 U.S. at
pp. 691–692].” (Integrity Staffing Solutions, Inc. v. Busk (2014
574 U.S. 27, 31 (Integrity Staffing).
These decisions “provoked a flood of litigation” (Integrity
Staffing, supra, 574 U.S. at p. 31; id. at pp. 32–33) and led
Congress to pass the Portal-to-Portal Act of 1947, which
amended the FLSA. (Pub.L. No. 80-49 (May 14, 1947) 61 Stat.
84; see also 29 U.S.C. § 254.) As relevant here, the act exempted
employers from liability for wage claims based on “ ‘(1) walking,
riding, or traveling to and from the actual place of performance
of the principal activity or activities which such employee is
employed to perform, and [¶] (2) activities which are preliminary
to or postliminary to said principal activity or activities . . . .’ ”
(Integrity Staffing, at p. 32.
“In response [to the Portal-to-Portal Act], the IWC,
exercising its authority to provide employees with greater
protection than federal law affords [citations], revised its wage
orders from 1947 forward . . . .” (Martinez v. Combs (2010) 49
Cal.4th 35, 60 (Martinez).) Before this revision, “California’s
definition of ‘hours worked’ was entitled ‘Hours Employed’ in
most wage orders and was defined differently.” (Morillion,
supra, 22 Cal.4th at p. 591.) “For example, former IWC wage
order No. 1 N.S. provided as follows: ‘ “Hours Employed” means
all time during which: [¶] (1) An employee is required to be on
the employer’s premises, or to be on duty, or to be at a prescribed
work place . . . .” (Id. at p. 591, fn. 7, italics added.) The 1947
revision adopted the term “hours worked” and defined it to mean
“ ‘the time during which an employee is subject to the control of
an employer, . . . includ[ing] all the time the employee is
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Opinion of the Court by Liu, J.
suffered or permitted to work, whether or not required to do
so.’ ” (Martinez, at p. 60, italics omitted.
CSI contends that “California’s removal of ‘required to be
on the employer’s premises’ from the definition of ‘hours
employed’ just after Anderson and just after Congress [enacted
the Portal-to-Portal Act] is substantial evidence that California,
like Congress, also rejected Anderson’s holding that traveling on
the employer’s premises before and after work should be
compensated.” But we rejected a nearly identical argument in
Morillion. There we considered the contention that “the 1947
amendment [to the wage orders], which eliminated specific
language regarding waiting time and time when employees are
required to be on their employer’s premises and on duty (in
addition to ‘time when an employee is required or instructed to
travel on the employer’s business after the beginning and before
the end of her work day’; [citation]), covered preliminary and
postliminary activities, including travel time, which are not
compensable under the Portal-to-Portal Act.” (Morillion, supra,
22 Cal.4th at p. 591.) We declined to infer that “the IWC revised
the definition of ‘hours worked’ to correspond to the federal
standard” (ibid.), which “expressly eliminates substantial
protections to employees” (id. at p. 592). “In addition to
eliminating the cited language, the IWC added the phrase ‘the
time during which an employee is subject to the control of an
employer’ to the definition of ‘hours worked.’ ‘Control’ may
encompass activities described by the eliminated language . . . .”
(Id. at pp. 591–592.) We observed that this “departure from the
federal authority is entirely consistent with the recognized
principle that state law may provide employees greater
protection than the FLSA.” (Id. at p. 592.
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Yet we had no occasion in Morillion, which addressed
“compulsory travel time” on an employer-provided bus
(Morillion, supra, 22 Cal.4th at pp. 587–588), to consider what
circumstances would make travel time on work premises in an
employee’s own vehicle compensable as “hours worked” under
the control test. Huerta says he is entitled to compensation for
the time he spent driving between the Security Gate and the
employee parking lots because he was subject to many rules
imposed by CSI during this time and mandatory entrance and
exit security procedures on either end. (We have considered the
exit security procedure separately in response to the first
certified question. (Ante, at pp. 6–12.)
The general Site rules that Huerta says CSI imposed
during his drive on the access road include safety and personal
protective equipment rules; anti-discrimination and anti-
harassment rules; environmental rules; alcohol and drug
policies; rules related to being subject to searches for alcohol,
drugs, and other things; and rules prohibiting smoking,
practical jokes, horseplay, gambling, photography, and playing
loud music. Additional “rules of the road” required Huerta to
abide by signs posted on the access road, adhere to speed limits,
and drive only on the road connecting the Security Gate and the
parking lots. Other rules prohibited Huerta from passing other
drivers on the access road, stopping on the access road except in
emergencies, smoking or using ear buds or ear pods while
driving, or driving in a manner that would generate dust or
otherwise disturb the local wildlife. Violation of these rules
could result in suspension or termination.
Although these rules curbed Huerta’s freedom of action
while traveling between the Security Gate and the parking lots,
we hold that they do not amount to a level of control sufficient
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Opinion of the Court by Liu, J.
to render the travel time compensable as “hours worked.” The
rules at issue are designed to ensure safe, lawful, and orderly
conduct while traveling on the employer’s premises. Such rules
are necessary and appropriate in virtually every workplace. A
warehouse employee who drives onto the employer’s grounds
may be subject to speed limits, parking rules, and restrictions
on noise, smoking, littering, paths of travel, or other conduct.
The same is true of employees of amusement parks, universities,
hospitals, retail stores, and other businesses with sizable
grounds. Huerta cites no authority for a rule that an employee
is entitled to compensation whenever he is not permitted to
drive wherever he wants, to go however fast as he wants, or to
stop wherever he wants on the employer’s premises.
In addition, the position Huerta urges does not appear
limited to driving time. If the rules that apply during Huerta’s
drive satisfy the control test, then so would workplace rules that
curb an employee’s freedom while walking or otherwise
traveling on the employer’s premises to and from the employee’s
worksite at the beginning or end of the day. A maintenance
worker who skateboards to his office building may be prohibited
from skateboarding through the lobby to the elevator. A
department store clerk may be prohibited from chewing gum or
talking on her cell phone while walking through the store before
or after her shift. And employees of all kinds are subject to
prohibitions on workplace harassment and discrimination while
on an employer’s premises.
We are unable to discern any meaningful distinction
between such rules and the workplace rules alleged by Huerta
to constitute employer control here. CSI appears correct that
Huerta’s position “has no limiting principle” and would invite
claims of unpaid wages from “any employee who uses a time
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clock” because “[e]mployees always spend some amount of time
navigating towards a time clock or their workspace before a shift
and away from the same area after a shift, in their cars on
employer property or walking across employer hallways or
sidewalks.” Because workplaces are regulated environments,
adopting Huerta’s position would mean that whenever an
employee is traveling on an employer’s premises, including
before or after a work shift, the time is compensable as “hours
worked.” We are not aware of any authority that has construed
employer control so expansively. Even though “ ‘[c]ontrol’ may
encompass activities described by the eliminated language”
covering preliminary and postliminary activities in pre-1947
wage orders (Morillion, supra, 22 Cal.4th at p. 592), we decline
to reduce the control test to a categorical rule of compensability
for any time that an employee spends traveling on work
premises. Rules designed to ensure safe, lawful, and orderly
conduct while traveling on an employer’s premises, such as the
general Site rules and the “rules of the road” at issue here, do
not impose a level of control that renders the time compensable.
Huerta says Morillion dictates a contrary result. But the
fact that the employer in Morillion required its employees to use
its buses to reach the workplace and “prohibited employees from
using their own transportation” (Morillion, supra, 22 Cal.4th at
p. 579) was notable because “[i]n contrast to Royal’s employees,
employees who commute to work on their own decide when to
leave, which route to take to work, and which mode of
transportation to use. By commuting on their own, employees
may choose and may be able to run errands before work and to
leave from work early for personal appointments.” (Id. at
pp. 586–587; see id. at p. 586 [“[D]uring the bus ride plaintiffs
could not drop off their children at school, stop for breakfast
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before work, or run other errands requiring the use of a car.”];
Frlekin, supra, 8 Cal.5th at p. 1051 [“Commuting is an activity
that employees ordinarily initiate on their own . . . .”].
The issue here does not concern Huerta’s commute to the
workplace; it is whether the rules that apply during Huerta’s
drive on the workplace premises make the driving time
compensable. Huerta argues the control test is met because
“while on the Access Road, [workers] could not use the time
effectively for their own personal purposes.” But quite apart
from CSI’s rules, once Huerta drove onto the Site, he did not
have the same options for running errands, dropping off
children, or attending to personal appointments that we found
relevant for evaluating control in Morillion. Huerta’s inability
to use the drive time for his personal purposes is no different
from the inability of an employee with a 30-minute commute to
use the 30 minutes required for getting to and from work —
independent of whatever additional time for personal errands
might be appended to the 30-minute commute — for his or her
personal purposes. (See Frlekin, supra, 8 Cal.5th at p. 1051
[“Commuting . . . is not generally compensable.”].) And if the
general Site rules were sufficient to establish control, then the
control test would boil down to a categorical rule of
compensability for any time an employee spends on the
employer’s premises, including the time it may take to find a
parking space at the start of the work day, to walk between a
parking lot and worksite at the beginning or end of the day, or
to wait for an elevator in a tall building. Unlike the mandatory
bus ride to the worksite in Morillion, and unlike the exit security
procedure here (ante, at pp. 9–14) and in Frlekin, the rules that
apply during Huerta’s drive between the Security Gate and the
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employee parking lots do not impose a level of control that
renders the driving time compensable as “hours worked.”
Huerta alternatively contends that the time he spent
driving between the Security Gate and the employee parking
lots is compensable as “hours worked” because he was “suffered
or permitted to work” during that time. (Cal. Code Regs., tit. 8,
§ 11160, subd. 2(J).) This phrase encompasses “time an
employee is working but is not subject to an employer’s control,”
such as “unauthorized overtime, which the employer has not
requested or required,” or when an employee “ ‘voluntarily
continue[s] to work at the end of a shift.’ ” (Morillion, supra, 22
Cal.4th at p. 585.) Courts have explained that “ ‘the standard of
“suffered or permitted to work” is met when an employee is
engaged in certain tasks or exertion that a manager would
recognize as work.’ ” (Hernandez, supra, 29 Cal.App.5th at
p. 142, quoting Taylor v. Cox Communs. Cal., LLC (C.D.Cal.
2017) 283 F.Supp.3d 881, 890.) Huerta says the time he spent
driving between the Security Gate and the employee parking
lots required him to exert himself mentally and physically, i.e.,
“work” for the benefit of his employer. But this expansive
construction does not align with the definition of “work” in this
context as “ ‘tasks or exertion that a manager would recognize
as work.’ ” (Hernandez, at p. 142.) Because an employee’s drive
on the access road is not a form of exertion that a manager would
recognize as work on the Site, the drive time is not compensable
under the suffer or permit clause.
C.
We now consider whether “time spent on the employer’s
premises, when workers are prohibited from leaving but not
required to engage in employer-mandated activities, [is]
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Opinion of the Court by Liu, J.
compensable as ‘hours worked’ within the meaning of . . . Wage
Order No. 16, or under California Labor Code Section 1194,
when that time was designated as an unpaid ‘meal period’ under
a qualifying collective bargaining agreement.” (Huerta, supra,
39 F.4th at p. 1177.
Labor Code section 512, subdivision (a) and Wage Order
No. 16, section 10(A) require employers to provide their
employees 30-minute meal periods, subject to certain
limitations and exemptions. As relevant here, Labor Code
section 512, subdivision (a) requires that employees working for
periods of more than five hours per day receive a meal period of
not less than 30 minutes, unless the employer and employee
waive the meal period in certain limited circumstances. The
subdivision does not apply to “employee[s] employed in a
construction occupation” (Lab. Code, § 512, subd. (f)(1); see id.,
§ 512, subd. (g)(2) [defining “construction occupation”]) if “(1
[t]he employee is covered by a valid collective bargaining
agreement” and “(2) [t]he valid collective bargaining agreement
expressly provides for the wages, hours of work, and working
conditions of employees, and expressly provides for meal periods
for those employees, final and binding arbitration of disputes
concerning application of its meal period provisions, premium
wage rates for all overtime hours worked, and a regular hourly
rate of pay of not less than 30 percent more than the state
minimum wage rate” (id., § 512, subd. (e)(1), (2)).
Wage Order No. 16, sections 10(A) and 10(B) generally
mirror Labor Code section 512, subdivision (a). (See Cal. Code
Regs., tit. 8, § 11160, subd. 10(A), (B).) Further, like Labor Code
section 512, subdivision (e), Wage Order No. 16, section 10(E
provides that “Subsections A, B, and D of Section 10, Meal
Periods, shall not apply to any employee covered by a valid
27

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
collective bargaining agreement if the agreement expressly
provides for the wages, hours of work, and working conditions of
the employees, and if the agreement provides premium wage
rates for all overtime hours worked and a regular hourly rate of
pay for those employees of not less than 30 percent more than
the state minimum wage.” Unlike the exemption to the meal
period requirements in Labor Code section 512, subdivision (e),
the exemption under Wage Order No. 16, section 10(E) does not
require the requisite collective bargaining agreement to
“expressly provide[] for meal periods for . . . employees, [or
provide for] final and binding arbitration of disputes concerning
application of its meal period provisions.” (Lab. Code, § 512,
subd. (e)(2).
The parties do not contest the validity of the CBAs, nor do
they dispute that the CBAs contain the requisite provisions to
exempt CSI from the meal period requirements set out in Labor
Code section 512, subdivision (a) and Wage Order No. 16,
section 10(A). (See Huerta, supra, 39 F.4th at pp. 1185–1186
[concluding that the CBAs properly exempted CSI from meal
period requirements].) They dispute whether a meal period,
when provided, may be unpaid if the workers remain subject to
the employer’s control.
Huerta argues that because he was prohibited from
leaving the Site and subject to CSI’s control during his meal
period, that time is compensable as “hours worked.” CSI
contends that Huerta is not entitled to compensation for unpaid
meal periods because the CBAs also exempted CSI from
compliance with Wage Order No. 16, section 10(D). (See Cal.
Code Regs., tit. 8, § 11160, subd. 10(E).) Wage Order No. 16,
section 10(D) provides: “Unless the employee is relieved of all
duty during a thirty (30) minute meal period, the meal period
28

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
shall be considered an ‘on duty’ meal period and counted as time
worked. An ‘on duty’ meal period shall be permitted only when
the nature of the work prevents the employee from being
relieved of all duty and when, by written agreement between the
parties, an on-the-job paid meal period is agreed to and complies
with Labor Code § 512.” (Cal. Code Regs., tit. 8, § 11160,
subd. 10(D).) CSI urges us to read the exemption from section
10(D)’s paid meal period requirement to mean that under a
qualifying CBA, workers may be permitted to bargain away
their right to a minimum wage for an on-duty meal period even
though it is “time worked.”
We reject CSI’s proposed construction of the Wage Order
No. 16, section 10(D) exemption. To read the wage order as
authorizing employees and employers to bargain away
employees’ right to be paid for an on-duty meal period, i.e., “time
worked,” would run afoul of the well-established principle that
the right to a minimum wage under Labor Code section 1194,
subdivision (a) is unwaivable. (Gutierrez v. Brand Energy
Services of California, Inc. (2020) 50 Cal.App.5th 786, 799–800
(Gutierrez).) Instead, we interpret Wage Order No. 16, section
10(D) and (E) to permit employees to bargain for a voluntary
paid on-duty meal period. In other words, an exemption from
section 10(D) permits workers to negotiate a contract for on-duty
meal periods even when “the nature of the work” does not
“prevent[] the employee from being relieved of all duty.” (Cal.
Code Regs., tit. 8, § 11160, subd. 10(D).) Here, neither party
argues that the nature of Huerta’s work was such that he could
not be relieved of all duty.
This reading harmonizes Wage Order No. 16, section
10(D) and (E) with Wage Order No. 16, section 4(B)’s
requirement that an employee be provided a minimum wage for
29

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
all “hours worked.” (Cal. Code Regs., tit. 8, § 11160, subd. 4(B).
Any time that an employee spends working is compensable as
“hours worked”; this includes an on-duty meal period, which by
definition is a meal period in which the employee is not relieved
of all work obligations. (See id., § 11160, subd. 2(J) [defining
“ ‘[h]ours worked,’ ” in pertinent part, as “the time during which
an employee is subject to the control of an employer”]; Brinker,
supra, 53 Cal.4th at p. 1039 [“the defining characteristic of on-
duty meal periods is failing to relieve an employee of duty, not
simply ‘suffering or permitting’ work to continue”].) This right
to a minimum wage for all “hours worked” derives not from
section 10(D), which specifies the circumstances in which paid
on-duty meal periods are authorized, but rather from Labor
Code section 1194, subdivision (a) and Wage Order No. 16,
section 4(B). The right to a minimum wage for all “hours
worked” exists independently of any right to an unpaid, off-duty
meal period.
This interpretation is also consistent with Araquistain v.
Pacific Gas & Electric Co. (2014) 229 Cal.App.4th 227
(Araquistain) and Gutierrez, supra, 50 Cal.App.5th 786. In
Araquistain, the Court of Appeal considered a CBA that
provided that employees working eight-hour shifts were
permitted to eat meals during work hours and would not be
afforded “additional time therefore at Company expense.”
(Araquistain, at p. 230.) The plaintiffs argued they were
entitled to “missed meal payments” when they were unable to
take a duty-free meal period. (Id. at p. 231.) The Court of
Appeal disagreed, holding that the employees waived their right
to an off-duty meal period under the CBA, as permitted by Labor
Code section 512, subdivision (e), which expressly exempts
employees from the meal period requirements of Labor Code
30

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
section 512, subdivision (a) when they are covered by a collective
bargaining agreement that provides for meal periods. (Id. at
pp. 234, 236.
The court explained that a “meal period” provided for in a
CBA need not have the same characteristics as the “meal
periods” required by the Labor Code. (Araquistain, supra, 229
Cal.App.4th at p. 234 [“a collectively bargained meal period . . .
need not necessarily be a full 30 minutes, begin before the end
of the fifth hour of work, or even be completely free of all employer
control”] (italics added).) Although the italicized language is
consistent with our view that collective bargaining agreements
may provide for voluntary on-duty meal periods, it does not
speak to the issue of compensation. The “meal periods” in
Araquistain — brief on-duty meal periods — were paid. (Id. at
p. 230.) The court said this was permissible because unionized
employees “are free to bargain over the terms of their meal
period, including whether the meal period will be of a specified
length and whether employees will be relieved of all duty during
that time.” (Id. at p. 238.) But the court said nothing about
whether employees are free to bargain over their right to be paid
minimum wage for all hours worked, including the hours of an
on-duty meal period.
In Gutierrez, the Court of Appeal considered an analogous
exemption from Wage Order No. 16, section 5(A)’s requirement
that employees be compensated at the regular rate or premium
rate for all employer-mandated travel. (Gutierrez, supra, 50
Cal.App.5th at p. 797.) It concluded the exemption allowed
employees to waive the right to compensation at their regular or
premium rates of pay, but not their right to compensation at the
applicable minimum wage. (Id. at pp. 798–799.) The court
reasoned that the Wage Order No. 16, section 5(D) collective
31

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
bargaining exemption did not “mention, much less override, the
separate requirement under Wage Order [No.] 16, section 4(B
that employees receive compensation ‘not less than the
applicable minimum wage for all hours worked . . . .’ ”
(Gutierrez, at p. 798.) Thus, an employer and union cannot
bargain away workers’ entitlement to be paid a minimum wage
for employer-mandated travel time. (Id. at p. 804.
Similarly, the Wage Order No. 16, section 10(E) exemption
at issue here neither mentions nor overrides Wage Order No. 16,
section 4(B)’s requirement that all workers be paid a minimum
wage for all “hours worked.” (See Cal. Code Regs., tit. 8,
§ 11160, subds. 4(B) & 10(D), (E).) The wage order does not
purport to limit, nor could it limit, Huerta’s right to file a civil
action to recover minimum wages “[n]otwithstanding any
agreement to work for a lesser wage.” (Lab. Code, § 1194,
subd. (a).) Thus, Wage Order No. 16 does not foreclose Huerta
from seeking compensation for any “hours worked” during an
“unpaid meal period” provided by a collective bargaining
agreement that exempts the employer from compliance with
Wage Order No. 16, section 10(A), (B), and (D).
We next examine under what circumstances an ostensibly
off-duty meal period may qualify as compensable “hours
worked.” In Bono, the Court of Appeal held that “[w]hen an
employer directs, commands or restrains an employee from
leaving the work place during his or her lunch hour and thus
prevents the employee from using the time effectively for his or
her own purposes, that employee remains subject to the
employer’s control,” and thus the employee must be
compensated for that time. (Bono, supra, 32 Cal.App.4th at
p. 975.) We have repeatedly relied on Bono’s reasoning in cases
interpreting the control clause, and we see no reason we should
32

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
not do the same here. (See Frlekin, supra, 8 Cal.5th at p. 1047
[applying Bono]; Morillion, supra, 22 Cal.4th at p. 583 [same];
Mendiola, supra, 60 Cal.4th at p. 842 [citing Morillion’s
application of Bono].) In Brinker, we cited Bono approvingly as
“emphasizing absence of duty and freedom from employer
control as central to unpaid meal periods.” (Brinker, supra, 53
Cal.4th at p. 1036, fn. 15.) There, we agreed with an opinion of
the Division of Labor Standards Enforcement (DLSE) of the
Department of Industrial Relations that an unpaid, off-duty
meal period requires that the employee “(1) has at least 30
minutes uninterrupted, (2) is free to leave the premises, and (3
is relieved of all duty for the entire period.” (Id. at p. 1036,
italics added.
We hold that even when a qualifying CBA exempts
employers from the requirements of Wage Order No. 16, section
10(D), an employee must be paid a minimum wage for meal
periods when an employer’s prohibition on leaving the premises
or a particular area forecloses the employee from engaging in
activities he or she could otherwise engage in if permitted to
leave. (See Bono, supra, 32 Cal.App.4th at p. 975.) Under these
circumstances, the employee remains under the employer’s
control despite being relieved of official duties because the
employer is restraining the employee from engaging in
otherwise feasible activities. (See ibid.) Although a meal
period’s limited duration may impose some practical limitations
on employees’ freedom of movement, employees must retain the
freedom to use the time “for their own purposes” if a meal period
is to qualify as off-duty. (Augustus v. ABM Security Services,
Inc. (2016) 2 Cal.5th 257, 270; see Brinker, supra, 53 Cal.4th at
p. 1036 [“ ‘The worker must be free to attend to any personal
business he or she may choose during the unpaid meal period’ ”
33

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
(quoting Dept. of Industrial Relations, DLSE Opn. Letter
No. 1991.06.03 (June 3, 1991))].) Even at remote worksites,
there is a meaningful difference between being required to eat
at one’s workstation or in a designated meal area and being
allowed to return to one’s personal vehicle or take a walk. In
the latter situations, an employee may be able to make personal
phone calls, take a nap, or simply enjoy a moment of quiet.
This conclusion accords with the view taken by the DLSE
in an opinion letter responding to a claim almost identical to
Huerta’s. (Dept. of Industrial Relations, DLSE Opn. Letter
No. 2001.01.12 (Jan. 12, 2001) p. 1 (DLSE 2001 Opinion Letter);
see Brinker, supra, 53 Cal.4th at p. 1029, fn. 11 [DLSE opinion
letters are “ ‘ “ ‘ “not controlling . . . [but] do constitute a body of
experience and informed judgment to which courts and litigants
may properly resort for guidance” ’ ” ’ ”]; Morillion, supra, 22
Cal.4th at p. 584 [relying on a DLSE opinion letter to inform its
interpretation of the IWC’s wage orders].) In the letter, the
DLSE addressed an employee inquiry regarding whether an
employer could “require[] its employees to remain on its
premises during the employees’ lunch period” without paying
the employees “for the lunch periods in which they are restricted
to the employer’s premises.” (DLSE 2001 Opinion Letter, at
p. 1.) Finding the practice was unlawful, the DLSE explained:
“[A]ny time during which an employee is prohibited from leaving
his or her employer’s premises constitutes ‘hours worked’ under
California law, and that such employees are entitled to
compensation for those hours worked.” (Ibid.) The DLSE
observed that Bono was “precisely on point” and that Morillion
“expressly approved” Bono’s interpretation of “hours worked.”
(Id. at p. 2.) After describing the holdings of those cases, the
DLSE concluded that “employees who were not paid for meal
34

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
periods during which they were prohibited from leaving the
employer’s premises, notwithstanding the fact that they were
relieved from all duty during those meal periods, are entitled to
compensation for their unpaid meal periods.” (Id. at p. 3.
On this record, we express no view on whether CSI’s
restrictions on employee’s movement during meal periods
prohibited Huerta from engaging in activities he might have
otherwise engaged in if permitted to leave. Huerta says he was
prohibited from leaving the Site during meal periods and that
CSI required him to stay at an assigned lunch area at his daily
Installation Site during his meal period. Huerta further states
that he could not return to his vehicle “at any time during the
workday” without special approval. On the other hand, the
distances separating the Installation Site, parking lot, and
public road, as well as the speed limit on the access road, might
have made travel impractical during Huerta’s 30-minute meal
period, and the fact that the features of a worksite make travel
impractical in the time allotted is not sufficient to establish
employer control. (See Augustus, supra, 2 Cal.5th at p. 270.
Further evidentiary development may be needed to determine if
these impediments, considered in light of the location and
characteristics of the Installation Site, meant that employees
could not engage in personal activities they would otherwise
have been able to engage in absent CSI’s prohibitions.
Finally, we hold that if Huerta’s “unpaid meal period” is
compensable under the wage order as “hours worked,” he is
entitled to seek compensation for that time under Labor Code
section 1194. The statute does not itself provide a substantive
basis for bringing a claim for unpaid wages; instead, it
authorizes an employee to bring a civil action to recover unpaid
wages owed under applicable wage orders. Subdivision (a) of
35

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
Labor Code section 1194 provides: “Notwithstanding any
agreement to work for a lesser wage, any employee receiving
less than the legal minimum wage or the legal overtime
compensation applicable to the employee is entitled to recover
in a civil action the unpaid balance of the full amount of this
minimum wage or overtime compensation, including interest
thereon, reasonable attorney’s fees, and costs of suit.” We have
explained that the “statutory and historical context” of this
section “shows unmistakably that the Legislature intended the
IWC’s wage orders to define the employment relationship in
actions under the statute.” (Martinez, supra, 49 Cal.4th at 52.
“[S]pecific employers and employees become subject to the
minimum wage only under the terms of an applicable wage
order, and an employee who sues to recover unpaid minimum
wages actually and necessarily sues to enforce the wage order.”
(Id. at p. 57.) The fact that the CBAs specify that Huerta’s meal
periods are “unpaid” does not defeat an action pursuant to the
statute; as noted, the statute by its terms authorizes suit for
minimum wages “[n]otwithstanding any agreement to work for
a lesser wage,” including no wage at all. (Lab. Code, § 1194,
subd. (a).
CONCLUSION
In response to the Ninth Circuit’s certification request, we
conclude as follows: First, when an employee is required to
spend time on his employer’s premises awaiting and undergoing
an employer-mandated exit security procedure that includes the
employer’s visual inspection of the employee’s personal vehicle,
the time is compensable as “hours worked” within the meaning
of Wage Order No. 16.
36

HUERTA v. CSI ELECTRICAL CONTRACTORS
Opinion of the Court by Liu, J.
Second, the time that an employee spends traveling
between the Security Gate and the employee parking lots is
compensable as “employer-mandated travel” under Wage Order
No. 16, section 5(A) if the Security Gate is the first location
where the employee’s presence is required for an employment-
related reason other than the practical necessity of accessing the
worksite. Separately, this travel time is not compensable as
“hours worked” because an employer’s imposition of ordinary
workplace rules on employees during their drive to the worksite
in a personal vehicle does not create the requisite level of
employer control.
Third, when an employee is covered by a collective
bargaining agreement that complies with Labor Code section
512, subdivision (e) and Wage Order No. 16, section 10(E), and
that agreement provides for an “unpaid meal period,” that time
is nonetheless compensable under the wage order as “hours
worked” if the employer prohibits the employee from leaving the
employer’s premises or a designated area during the meal period
and if this prohibition prevents the employee from engaging in
otherwise feasible personal activities. An employee may bring
an action under Labor Code section 1194 to enforce the wage
order and recover unpaid wages for that time.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
37

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Huerta v. CSI Electrical Contractors, Inc.

Procedural Posture (see XX below
Original Appeal
Original Proceeding XX on request by 9th Circuit (Cal. Rules of
Court, rule 8.548
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted

Opinion No. S275431
Date Filed: March 25, 2024

Court:
County:
Judge:

Counsel:
Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C.
Blanchard III for Plaintiff and Appellant.
Ford & Harrison, Daniel B. Chammas and Min K. Kim for Defendant
and Respondent.
Atkinson, Andelson, Loya, Ruud & Romo, Steven D. Atkinson, Ronald
W. Novotny and Kieran D. Hartley for Construction Employers’
Association, Southern California Contractors Association and Southern
California Association of Scaffold Contractors as Amici Curiae on
behalf of Defendant and Respondent.
Simpson, Garrity, Innes & Jacuzzi, Paul V. Simpson and Sarah E.
Lucas for the Los Angeles County Chapter, National Electrical
Contractors Association as Amicus Curiae on behalf of Defendant and
Respondent.

Ogletree, Deakins, Nash, Smoak & Stewart, Robert R. Roginson,
Christopher W. Decker and David Szwarcsztejn for Employers Group
and California Employment Law Council as Amici Curiae on behalf of
Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Peter R. Dion-Kindem
Peter R. Dion-Kindem, P.C.
3856 Davids Road
Agoura Hills, CA 91301
(818) 883-4900
Daniel B. Chammas
Ford & Harrison LLP
350 South Grand Avenue, Suite 2300
Los Angeles, CA 90071
(213) 237-2442

Niedermeier v. FCA US LLC

admin — Mon, 04 Mar 2024 20:52:50 +0000

IN THE SUPREME COURT OF
CALIFORNIA
LISA NIEDERMEIER,
Plaintiff and Respondent,
v.
FCA US LLC,
Defendant and Appellant.
S266034
Second Appellate District, Division One
B293960
Los Angeles County Superior Court
BC638010
March 4, 2024
Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
and Jenkins concurred.
Justice Kruger filed a concurring opinion, in which Justices
Groban and Jenkins concurred.

NIEDERMEIER v. FCA US LLC
S266034
Opinion of the Court by Evans, J.
California’s lemon law protects consumers who purchase
defective vehicles or other goods. The lemon law, officially
known as the Song-Beverly Consumer Warranty Act (Civ. Code,
§ 1791 et seq.;1 hereafter the Act or the Song-Beverly Act),
permits new vehicle buyers who have been damaged by a
manufacturer’s failure to comply with the Act to sue under
section 1794 for the recovery of damages and other relief.
(§ 1794, subd. (a).) The measure of a buyer’s damages in such
an action includes “replacement or reimbursement as set forth
in subdivision (d) of Section 1793.2 . . . .” (Id., subd. (b).) If a
manufacturer is unable to repair a new vehicle after a
reasonable number of attempts, section 1793.2, subdivision (d
requires the manufacturer to promptly replace the vehicle or
promptly pay restitution “in an amount equal to the actual price
paid or payable by the buyer,” as specified. (Id., subd. (d)(2)(B).
The manufacturer is entitled to reduce the amount of restitution
by the “amount directly attributable” to the buyer’s use of the
vehicle prior to the time the buyer first delivered the vehicle for
repair. (Id., subd. (d)(1); see also id., subd. (d)(2)(C).
The questions before us are whether, in an action under
section 1794, the statutorily-defined measure of restitution set
forth in section 1793.2, subdivision (d)(2) (hereafter sometimes
1
All further statutory references are to the Civil Code
unless otherwise indicated.
1

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
referred to as the statutory restitution remedy) must be reduced
by proceeds a buyer has received when trading in or selling a
defective vehicle and, if so, whether the reduction should be
assessed before or after penalties are calculated.2 The Court of
Appeal below held that the statutory restitution remedy did not
include the amount a plaintiff recovered after trading in a
defective vehicle, and thus reduced the plaintiff’s damages
award by the trade-in amount (here, $19,000). (Niedermeier v.
FCA US LLC (2020) 56 Cal.App.5th 1052, 1060, 1061
(Niedermeier).
We conclude that in an action pursuant to section 1794,
neither a trade-in credit nor sale proceeds reduce the statutory
restitution remedy set forth in section 1793.2, subdivision (d)(2
at least where, as here, a consumer has been forced to trade in
or sell a defective vehicle due to the manufacturer’s failure to
comply with the Act. Given this conclusion, we do not reach the
issue of when such a reduction, if it were authorized, should be
assessed. Accordingly, we reverse the judgment of the Court of
Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January 2011, Lisa Niedermeier purchased a new Jeep
Wrangler (hereafter the vehicle) from FCA US LLC (hereafter
FCA) for approximately $40,000. Almost immediately, and
2
As Niedermeier had traded in her vehicle, the issue before
the Court of Appeal was limited to whether the restitution
remedy included the amount Niedermeier recovered by trading
in the vehicle. FCA US LLC, however, assumes the same
analysis applies to proceeds from the sale of a defective vehicle,
and we find that the outcome would remain the same regardless
of whether a buyer trades in or sells a defective vehicle. Our
analysis therefore encompasses both circumstances throughout.
2

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
throughout the warranty period, Niedermeier experienced a
variety of problems with the vehicle’s transmission, engine, and
exhaust. These problems caused the vehicle to jerk, make
rattling and grinding noises, and emit noxious gases. They
caused the floorboard of the vehicle to heat up and impaired the
vehicle’s braking, acceleration, and turning. Niedermeier
presented the vehicle to FCA’s authorized repair facilities a total
of 16 times over four years, but the facilities were unable to
remedy the defects. Niedermeier’s vehicle was out of
commission for 75 days during the failed repair attempts.
In April 2015, Niedermeier asked FCA to buy back the
vehicle, but FCA declined. Niedermeier renewed her request in
early June 2015, and made a third buyback demand in late June
2015. FCA, however, declined to repurchase the vehicle. By the
time Niedermeier made the third buyback request, she had
presented the vehicle for repair 14 times. In October 2015, after
additional repair attempts failed, Niedermeier traded in the
vehicle for a new GMC Yukon. The purchase price of the Yukon
was $80,000, and the dealership gave Niedermeier a $19,000
trade-in credit towards that purchase.
In October 2016, Niedermeier filed a lawsuit against FCA
asserting causes of action for breach of express warranty under
the Act, breach of implied warranty under the Act, fraudulent
inducement and concealment, and negligent repair. A jury
found in Niedermeier’s favor on her claims for breach of express
warranty and breach of implied warranty and awarded her
$98,961.08. The jury found against Niedermeier on her claim
for fraudulent inducement/concealment. The jury also found
that FCA willfully violated the Act. The damages award
included: the purchase price of the vehicle, including charges
for transportation and manufacturer-installed options, finance
3

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
charges, sales tax, license fees, and other official fees pursuant
to section 1793.2, subdivision (d)(2)(B), a total of $39,799;
incidental and consequential damages of $5,000; and a
deduction of $5,214.57, reflecting the amount attributable to
Niedermeier’s use of the vehicle before she first delivered it to
FCA’s authorized facilities for repairs pursuant to
section 1793.2, subdivision (d)(2)(C). The award also included a
penalty of $59,376.65 pursuant to section 1794, subdivision (c
due to FCA’s willful failure to repurchase the vehicle.
Following the verdict, FCA filed a postjudgment motion
requesting a $19,000 offset from the awarded damages (the
amount of the trade-in credit Niedermeier received on the
Yukon’s purchase price), to be imposed before the civil penalty
was assessed. This would have resulted in a total award of
$51,461.07. The trial court denied FCA’s motion. It reasoned
that reducing the jury’s award by the trade-in amount would be
inconsistent with the pro-consumer policy supporting the Act.
The court concluded an offset for the trade-in “would reward
defendant for its delay in replacing the car or refunding
plaintiff’s money when defendant had complete control over the
length of that delay, and an affirmative statutory duty to replace
or refund promptly. . . . ‘No one can take advantage of his own
wrong.’ (§ 3517.) Nor can principles of equity be used to avoid
a statutory mandate.”
FCA appealed. It made three arguments before the Court
of Appeal: (1) by obtaining a full refund under section 1793.2,
subdivision (d)(2) in addition to proceeds from the trade-in of the
vehicle, Niedermeier received a windfall, which is inconsistent
with the concept of restitution; (2) provisions of the California
Uniform Commercial Code incorporated into section 1794 of the
Act recognize that a buyer’s recovery is reduced by the amount
4

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
the buyer obtains by reselling the vehicle; and (3) allowing
Niedermeier a full refund on top of trade-in proceeds she
received would undermine legislative protections for
downstream consumers in the used car market by effectively
nullifying the Act’s requirement that manufacturers notify
subsequent purchasers of defects in reacquired vehicles.
The Court of Appeal agreed with FCA’s first and third
arguments and reversed. It declined to consider FCA’s second
argument. The Court of Appeal held, as a matter of first
impression, that the Act’s restitution remedy — “set at ‘an
amount equal to the actual price paid or payable’ for the
vehicle” — does not include any amount a plaintiff receives from
trading in the defective vehicle. (Niedermeier, supra, 56
Cal.App.5th at p. 1061.) The Court of Appeal reasoned that the
Legislature’s use of the word “restitution” in section 1793.2,
subdivision (d)(2)(B) indicates an intent to restore the status
quo ante as far as practicable and return buyers to the financial
position they would have been in had they not purchased the
vehicle. (Niedermeier, at p. 1071.) It concluded that allowing
Niedermeier the full restitution remedy after she received a
credit for trading in the vehicle would place her in a better
position than if she had never purchased the vehicle, a result
inimical to the concept of restitution. (Ibid.
The Court of Appeal also opined that allowing the full
restitution refund under section 1793.2, subdivision (d)(2)(B
would thwart the lemon law’s labeling and notification
requirements. It noted that the labeling and notification
provisions are only triggered when a manufacturer reacquires
the defective vehicle. It reasoned that allowing buyers to
recover the full restitution remedy after receiving trade-in
proceeds would incentivize buyers to reintroduce defective
5

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
vehicles into the market without the statutorily required Lemon
notifications, rendering the labeling and notification provisions
“largely meaningless, a result contrary to the rules of statutory
construction.” (Niedermeier, supra, 56 Cal.App.5th at p. 1072.
We granted review. Since that time, another division of
the Second Appellate District has disagreed with Niedermeier
and held that a manufacturer is not entitled to a reduction in
restitution damages under section 1793.2, subdivision (d)(2) for
the net cash a plaintiff receives after selling a defective vehicle
to a third party. (Figueroa v. FCA US, LLC (2022
84 Cal.App.5th 708, 713–714 (Figueroa).) We granted review in
Figueroa on February 1, 2023, and deferred further action in
that matter until after this case is decided.
More recently, the Third Appellate District also disagreed
with Niedermeier. It agreed with Figueroa that a buyer’s
restitution under the Act does not exclude the credit a buyer
receives when trading in a defective vehicle. (Williams v. FCA
US LLC (2023) 88 Cal.App.5th 765, 772 (Williams).) The court
concluded that the jury impermissibly deducted the buyer’s
$29,500 trade-in credit when calculating the actual price paid or
payable as provided in the statutory restitution remedy. (Id. at
p. 786.) We granted review in Williams on May 3, 2023, and
deferred further action in that matter until after this case is
decided.
II. DISCUSSION
We are first asked to determine whether a consumer’s
restitution damages award, defined in section 1793.2,
subdivision (d)(2), must be reduced by the proceeds the
consumer receives after trading in or selling a defective vehicle.
This is a question of statutory construction, which we review de
6

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
novo. (Apple, Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.
As with all cases of statutory interpretation, “[w]e first examine
the statutory language, giving it a plain and commonsense
meaning. [Citation.] We do not consider statutory language in
isolation; instead, we examine the entire statute to construe the
words in context. [Citation.] If the language is unambiguous,
‘then the Legislature is presumed to have meant what it said,
and the plain meaning of the language governs.’ ” (Kirzhner
v. Mercedes–Benz USA, LLC (2020) 9 Cal.5th 966, 972
(Kirzhner).) Further, “there is no need for construction, nor is it
necessary to resort to indicia of the intent of the Legislature” to
interpret the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d
727, 735.
On the other hand, “ ‘[i]f the statutory language permits
more than one reasonable interpretation, courts may consider
other aids, such as the statute’s purpose, legislative history, and
public policy.’ ” (Kirzhner, supra, 9 Cal.5th at p. 972.) When
more than one statutory construction is arguably possible, our
policy is “ ‘to favor the construction that leads to the more
reasonable result.’ [Citation.] This policy derives largely from
the presumption that the Legislature intends reasonable results
consistent with the apparent purpose of the legislation.
[Citation.] Thus, our task is to select the construction that
comports most closely with the Legislature’s apparent intent,
with a view to promoting rather than defeating the statutes’
general purpose, and to avoid a construction that would lead to
unreasonable, impractical, or arbitrary results.” (Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 388.) We
also keep in mind that the Act is “ ‘manifestly a remedial
measure, intended for the protection of the consumer; it should
be given a construction calculated to bring its benefits into
7

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
action.’ ” (Murillo v. Fleetwood Enterprises, Inc. (1998
17 Cal.4th 985, 990 (Murillo); see also People ex rel. Lungren v.
Superior Court (1996) 14 Cal.4th 294, 313 [“civil statutes for the
protection of the public are, generally, broadly construed in
favor of that protective purpose”]; see Pineda v. Williams-
Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 530 (Pineda
[liberally construing § 1747.08 of the Song-Beverly Credit Card
Act].
A. The Plain Text of Section 1794 and the
Statutory Restitution Remedy Do Not Support
an Offset for a Trade-in Credit or Sale Proceeds
Resolution of the first issue before us requires us to
interpret several interrelated provisions of the Act. First,
section 1794, subdivision (a) permits a buyer who “is damaged
by a failure to comply with any obligation” under the Act or
under an implied or express warranty or service contract to
“bring an action for the recovery of damages and other legal and
equitable relief.” (§ 1794, subd. (a).) “The measure of the
buyer’s damages in an action under this section shall include the
rights of replacement or reimbursement as set forth in
subdivision (d) of Section 1793.2, and the following:
[¶] (1) Where the buyer has rightfully rejected or justifiably
revoked acceptance of the goods or has exercised any right to
cancel the sale, Sections 2711, 2712, and 2713 of the
Commercial Code shall apply. [¶] (2) Where the buyer has
accepted the goods, Sections 2714 and 2715 of the Commercial
Code shall apply, and the measure of damages shall include the
cost of repairs necessary to make the goods conform.” (Id., subd.
(b).
8

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
In turn, section 1793.2, subdivision (d)(2) of the Act
provides that if a manufacturer or its representative “is unable
to service or repair a new motor vehicle . . . to conform to the
applicable express warranties after a reasonable number of
attempts, the manufacturer shall either promptly replace the
new motor vehicle in accordance with subparagraph (A) or
promptly make restitution to the buyer in accordance with
subparagraph (B). However, the buyer shall be free to elect
restitution in lieu of replacement, and in no event shall the
buyer be required by the manufacturer to accept a replacement
vehicle.”3
The Act provides a specific formula for calculating the
amount of restitution. According to the Act, “the manufacturer
shall make restitution in an amount equal to the actual price
paid or payable by the buyer, including any charges for
transportation and manufacturer-installed options, but
3
Section 1793.2, subdivision (d)(2) has dual purposes.
First, it (along with the other subdivisions of § 1793.2) instructs
manufacturers about what they must do to comply with the Act
when a vehicle proves defective. (See generally Kirzhner, supra,
9 Cal.5th at p. 971 [§ 1793.2, subd. (d)(2) “sets forth the
manufacturer’s affirmative obligation to ‘promptly’ repurchase
or replace a defective vehicle it is unable to repair” and describes
how manufacturers must offer replacement or restitution in
order to comply with the Act].) Second, section 1793.2,
subdivision (d)(2) includes the right to reimbursement as a
measure of damages in an action pursuant to section 1794. (See
Kirzhner, at pp. 971–972 [§ 1794 is “the Act’s general damages
provision” and permits buyers to seek damages, “the measure of
which includes the restitution and replacement remedies”].
The question before us today involves the latter purpose of
section 1793.2, subdivision (d)(2), and our analysis is therefore
limited to the issue of the calculation of damages in a lawsuit
under section 1794.
9

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
excluding nonmanufacturer items installed by a dealer or the
buyer, and including any collateral charges such as sales or use
tax, license fees, registration fees, and other official fees, plus
any incidental damages to which the buyer is entitled under
Section 1794, including, but not limited to, reasonable repair,
towing, and rental car costs actually incurred by the buyer.”
(§ 1793.2, subd. (d)(2)(B).) The amount to be paid to the buyer
may also “be reduced by the manufacturer by that amount
directly attributable to use by the buyer prior to the time the
buyer first delivered the vehicle to the manufacturer or
distributor, or its authorized service and repair facility for
correction of the problem that gave rise to the nonconformity.”
(§ 1793.2, subd. (d)(2)(C).) Offsets for nonmanufacturer items
installed by a dealer or buyer and the buyer’s predelivery use of
the vehicle are the only reductions to the restitution remedy
enumerated in section 1793.2, subdivision (d).
1. The Statutory Restitution Remedy Does Not Allow
a Restitution Award to Be Reduced by a Trade-in
Credit or Sale Proceeds
The parties disagree how the restitution remedy in
section 1793.2, subdivision (d)(2) should be interpreted. The
parties specifically disagree whether the amount Niedermeier
received when she traded in the defective vehicle should be
excluded from the statutory restitution remedy. Niedermeier
argues the Act’s plain language lays out the precise measure and
scope of restitution and does not permit any reduction in the
restitution award by the amount of a trade-in credit.
Notwithstanding the Act’s defined restitution formula,
including its express reference to specific permissible offsets,
FCA argues that restitution should be given the same meaning
as provided in common law. According to FCA, Niedermeier’s
10

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
restitution award should be reduced by the amount she
recovered when trading in the vehicle in order to avoid a double
recovery.
We agree with Niedermeier and conclude the plain
language of the Act does not support FCA’s construction of
section 1793.2. As noted above, the Act’s plain language lays
out a specific formula for calculating the amount of restitution
to be paid by the manufacturer as damages in an action
pursuant to section 1794. The statutory restitution remedy has
clearly enumerated exceptions, none of which includes the offset
requested by FCA. (Accord, Figueroa, supra, 84 Cal.App.5th at
p. 712 [“[t]he statute is clear and unequivocal”]; Williams,
supra, 88 Cal.App.5th at p. 780 [“[a]lthough the Legislature
used the word ‘restitution’ in section 1793.2, subdivision (d), it
clearly defined that term in the restitution provision by stating
it is ‘an amount equal to the actual price paid or payable by the
buyer,’ a calculus that includes and excludes specified costs”
(original italics)].
Nowhere does section 1793.2 provide that a restitution
award must be reduced by any amount a buyer receives when
trading in or selling the defective vehicle to a third party. In
order to adopt FCA’s statutory construction, we would have to
ignore the words following “restitution” in section 1793.2,
subdivision (d)(2)(B), including “paid or payable” and the
enumerated exceptions. “[O]ur office is simply to ascertain and
declare what the statute contains, not to change its scope by
reading into it language it does not contain or by reading out of
it language it does. We may not rewrite the statute to conform
to an assumed intention that does not appear in its language.”
(Vasquez v. State of California (2008) 45 Cal.4th 243, 253; see
also Jiagbogu v. Mercedes–Benz USA (2004) 118 Cal.App.4th
11

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
1235, 1241 (Jiagbogu) [“We may not rewrite the section to
conform to that unexpressed, supposed intent”]; see also
Figueroa, supra, 84 Cal.App.5th at p. 712 [“We cannot add
words to a clear and unequivocal statute”].
As noted above, the statute excludes nonmanufacturer-
installed options from the restitution calculation (§ 1793.2,
subd. (d)(2)(B)) and permits the restitution award to be reduced
by the amount of a buyer’s predelivery use of the vehicle (id.,
subd. (d)(2)(C)). The choice to include these exceptions, and no
others, indicates that the Legislature intended to specify how
restitution awards for new motor vehicles must be calculated,
including limiting the number and type of offsets to those
explicitly enumerated.4 The Legislature recognized there were
multiple sources of potential offsets to the restitution remedy
yet did not include trade-in credits or sales proceeds in the
statute. The Legislature could have stated that trade-in or sale
amounts were to be offset or reduced from the statutory
restitution remedy. It did not do so. “We will not create an
4
Indeed, in section 1793.2, subdivision (d), the measure of
restitution is defined differently for “goods” and “new motor
vehicles.” For “goods,” restitution is defined as, “the purchase
price paid by the buyer, less that amount directly attributable
to use by the buyer prior to the discovery of the nonconformity.”
(§ 1793.2, subd. (d)(1).) We have thus held that section 1793.2,
subdivision (d) “treats the special provisions applicable to new
motor vehicles in subdivision (d)(2) as an exception to the
general provision applicable to all consumer goods in
subdivision (d)(1)[,]” as subdivision (d)(2) “provides additional
specifications for both the refund and restitution remedies.”
(Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 490–
491, italics added; see also id. at p. 491 [“If restitution is
selected, the amount is to be calculated as specified by the
statute”].
12

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
exception the Legislature did not enact.” (Lopez v. Sony
Electronics, Inc. (2018) 5 Cal.5th 627, 636.
Moreover, trade-in or sale proceeds obtained years after
the purchase of a defective vehicle are not part of “the actual
price paid or payable” because they are separate and apart from
the settled purchase price of the vehicle at the time of
contracting. In our recent opinion in Kirzhner, we explained
that the “actual price paid or payable” is determined at the time
of the vehicle’s purchase. (Kirzhner, supra, 9 Cal.5th at
pp. 974–975.) In Kirzhner, we were tasked with determining
whether vehicle registration renewal and nonoperation fees
plaintiff paid after initially leasing his vehicle were recoverable
as collateral charges or as incidental damages under
section 1793.2, subdivision (d)(2)(B). We held that the charges
were not recoverable as collateral charges because they “are not
auxiliary to and do not supplement the price paid [for the
vehicle] because they are not paid as part of the total cost of the
vehicle and in exchange for the vehicle.” (Kirzhner, supra,
9 Cal.5th at p. 975.
We rejected Kirzhner’s argument that the phrase “actual
price paid or payable” indicated a legislative intent to ensure the
manufacturer paid the consumer what the consumer actually
paid as of the time of the repurchase rather than at the time of
contracting. We explained, “[t]he word ‘price’ means ‘[t]he cost
at which something is obtained’ or ‘[t]he consideration given for
the purchase of a thing.’ ” (Kirzhner, supra, 9 Cal.5th at
pp. 972–973, citing Black’s Law Dict. (6th ed. 1990) p. 1188,
col. 2); see also Black’s Law Dict. (11th ed. 2019) [price means
“[t]he amount of money or other consideration asked for or given
in exchange for something else; the cost at which something is
bought or sold”].) We noted the word “ ‘payable’ ” in
13

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
section 1793.2, subdivision (d)(2)(B) modifies the word “ ‘price’ ”
and simply acknowledges that some buyers do not pay the full
cost of the vehicle at the time of the initial purchase or lease, but
does not demonstrate that all later-incurred charges or expenses
connected to ownership or use of vehicle are recoverable.
(Kirzhner, at p. 974.) We concluded, however, that the charges
would be recoverable as incidental damages if they were
incurred as a result of the manufacturer’s failure to promptly
provide a replacement vehicle or restitution under section
1793.2, subdivision (d)(2). (Kirzhner, at p. 977.
The Court of Appeal here acknowledged section 1793.2,
subdivision (d)(2)(B) defines restitution as “the actual price paid
or payable,” but declined to follow a plain language reading of
the statute. Relying on Mitchell v. Blue Bird Body Co. (2000
80 Cal.App.4th 32 (Mitchell), it found the Legislature’s choice of
the word “restitution” significant in this case and reasoned that
a literal interpretation of the statute would disregard the
Legislature’s word choice, allow Niedermeier “to recover far
more from [FCA] than her actual economic loss[,]” and result in
an unjustified windfall to Niedermeier. (Niedermeier, supra,
56 Cal.App.5th at p. 1071.
We find the Court of Appeal’s reliance on Mitchell to be
misplaced. In Mitchell, the court considered whether the “actual
price paid or payable” in section 1793.2, subdivision (d)(2)(B
included interest payments paid after a vehicle was purchased.
It held the payments were part of the actual price paid or
payable, and properly recoverable as restitution under the Act,
because consumers become legally obligated to pay the
payments at the time the vehicle is purchased or leased.
(Mitchell, supra, 80 Cal.App.4th at p. 38.) It is true that the
Mitchell court interpreted “restitution” as designating a remedy
14

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
meant “to restore ‘the status quo ante as far as is
practicable . . . .’ ” (Id. at p. 36, italics omitted.) But Mitchell
did not consider whether it was appropriate to reduce the
statutory restitution remedy by the amount of a trade-in credit
or sale proceeds in order to restore the status quo. Contrary to
the Court of Appeal’s conclusion, Mitchell’s analysis suggests
that reducing the restitution remedy by an amount not
enumerated in section 1793.2, subdivision (d) would be
inappropriate. The Mitchell court emphasized the remedial
nature of the Act and explained that restoring the status quo
was intended to afford “ ‘complete relief, including restitution of
benefits . . . and any consequential damages to which [the
purchaser] is entitled . . . .’ ” (Mitchell, supra, 80 Cal.App.4th at
p. 36.) It thus concluded that “the Legislature intended to allow
a buyer to recover the entire amount actually expended for a
new motor vehicle, including paid finance charges, less any of
the expenses expressly excluded by the statute.” (Id. at p. 37,
italics added.
In interpreting “restitution,” the Mitchell court relied on
Alder v. Drudis (1947) 30 Cal.2d 372, 384, in which we observed,
“The purpose of restitution as a remedy for breach is the
restoration of the status quo ante as far as is practicable, and in
the absence of qualifying circumstances, the plaintiff must
return any consideration he has received in order to obtain
specific restitution.” (Italics omitted.) Alder, however, predates
the Act’s enactment by more than 20 years, did not concern
breach of a product warranty, and considers only common law
restitution and rules of equity. The plain language of
section 1793.2, subdivision (d)(2), by contrast, indicates that the
Legislature intended “restitution” to be “a term of art separate
15

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
from the evolving common law concept that shares the name.”5
(Scholes v. Lambirth Trucking Co. (2020) 8 Cal.5th 1094, 1111;
see also Metropolitan Water Dist. v. Superior Court (2004
32 Cal.4th 491, 500 [courts generally apply common law when a
statute refers to a term without defining the term]; People v.
Lopez (2003) 31 Cal.4th 1051, 1060 [“if a term known to the
common law has not otherwise been defined by statute, it is
assumed that the common law meaning was intended” (italics
added)]; Williams, supra, 88 Cal.App.5th at p. 780 [same].
Moreover, “ ‘principles of equity [cannot] be used to avoid a
statutory mandate.’ ” (Martinez v. Kia Motors America, Inc.
(2011) 193 Cal.App.4th 187, 199 (Martinez), citing Jiagbogu,
5
Notably, the statutory restitution remedy is consistently
referenced throughout the Act by specific reference to
section 1793.2, subdivision (d)(2) and its directive for
calculating restitution. (See, e.g., §§ 1793.23, subd. (c) [labeling
requirements
include
circumstances
in
which
“the
manufacturer knew or should have known that the vehicle is
required by law to be replaced [or] accepted for restitution due
to the failure of the manufacturer to conform the vehicle to
applicable warranties pursuant to paragraph (2) of
subdivision (d) of Section 1793.2”], 1793.25, subd. (a) [“State
Board of Equalization shall reimburse the manufacturer of a
new motor vehicle for an amount equal to the sales tax or use
tax which the manufacturer . . . includes in making restitution
to the buyer or lessee pursuant to subparagraph (B) of
paragraph (2) of subdivision (d) of Section 1793.2”], 1794,
subd. (b) [“The measure of the buyer’s damages in an action
under this section shall include the rights of replacement or
reimbursement
as
set
forth
in
subdivision (d
of
Section 1793.2”].) These repeated references to subdivision
(d)(2) further indicate a legislative intent to attribute a specific
statutory restitution formula to the term “restitution” distinct
from the common law definition.
16

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
supra, 118 Cal.App.4th at p. 1244.) The plain language of
section 1793.2, subdivision (d)(2) does not contemplate an
unenumerated reduction to the statutory restitution remedy for
a trade-in credit or sale proceeds received after the purchase of
a defective vehicle.
2. Section 1794’s Reference to the California Uniform
Commercial Code Does Not Provide a Basis to
Reduce Restitution Damages by a Trade-in Credit
or Sale Proceeds
FCA next contends that Niedermeier’s damages must be
reduced by the amount she received when she traded in the
defective vehicle since section 1794, subdivision (b) incorporates
California Uniform Commercial Code sections 2711 through
2715. These provisions prohibit a double recovery and set forth
a reduced measure of damages when a buyer resells goods. FCA
argues that because section 1794, subdivision (b) states that the
measure of damages “shall include the rights of replacement or
reimbursement . . . and” (italics added) the California Uniform
Commercial Code remedies, the remedies identified in
section 1793.2, subdivision (d) and the remedies identified in
the California Uniform Commercial Code are not merely
alternate measures of damages. Rather, FCA urges, the
measure of damages must consider both the statutory
restitution remedy and the relevant provisions of the California
Uniform Commercial Code. Citing Kwan v. Mercedes-Benz of
North America, Inc. (1994) 23 Cal.App.4th 174 (Kwan), Bishop
v. Hyundai Motor America (1996) 44 Cal.App.4th 750 (Bishop),
and Kirzhner, FCA argues the Legislature has made it clear that
damages — including the restitution remedy — are measured in
the same manner as, and subject to the general rules applicable
to, ordinary contracts.
17

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
We conclude that the Act’s restitution and replacement
remedies are distinct from the available California Uniform
Commercial Code remedies referenced in section 1794, and the
California Uniform Commercial Code remedies do not reduce
the Act’s statutory restitution remedy. We also find that any
attempt to reduce the statutory restitution remedy by the
remedies set forth in the California Uniform Commercial Code
would conflict with the Act, and the Act’s restitution remedy
thus controls. (See § 1790.3.
“[A]s the conjunctive language in Civil Code section 1794
indicates, the statute itself provides an additional measure of
damages beyond replacement or reimbursement (Civ. Code,
§ 1793.2, subd. (d)) and permits, at the option of the buyer, the
Commercial Code measure of damages which includes ‘the cost
of repairs necessary to make the goods conform.’ (Civ. Code,
§ 1794, subd. (b)(2).)” (Krotin v. Porsche Cars North America,
Inc. (1995) 38 Cal.App.4th 294, 302 (Krotin), italics added.
Moreover, the plain language of section 1794 makes clear that
“[t]he measure of the buyer’s damages in an action under this
section shall include the rights of replacement or
reimbursement as set forth in subdivision (d) of Section 1793.2,
and [the California Uniform Commercial Code remedies].”
(§ 1794, subd. (b), italics added.) The phrase “as set forth”
indicates that the buyer is entitled to the statutory restitution
remedy as distinctly and precisely described in section 1793.2,
subdivision (d) in addition to any applicable remedies set forth
in the California Uniform Commercial Code.
FCA’s statutory interpretation not only disregards the
plain language of section 1794, it also ignores the overall
statutory context. Section 1794 is intended to encompass all of
the remedies available for failures to “comply with any
18

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
obligation under this chapter [i.e., the Act,]” as well as non-Act
failures to comply with any obligation “under an implied or
express warranty or service contract . . . .” (§ 1794, subd. (a);
§ 1790; see also Kwan, supra, 23 Cal.App.4th at p. 180
[“Section 1794 sets out the damages available to a buyer for a
seller or manufacturer’s failure to comply with an obligation
under the Act or under a consumer product warranty”].
Moreover, the Act provides that its remedies “are cumulative
and shall not be construed as restricting any remedy that is
otherwise available . . . .” (§ 1790.4, italics added.) We have
similarly observed that the “pro-consumer remedies [of the Act]
are in addition to those available to a consumer pursuant to the
Commercial Code ( . . . § 1790.3) and the Unfair Practices Act
( . . . § 1790.4).” (Murillo, supra, 17 Cal.4th at p. 990, italics
added.
The language of the statutory restitution remedy itself
further supports our conclusion that it is distinct from the
California Uniform Commercial Code remedies identified in
section 1794. Section 1793.2, subdivision (d)(2)(B) requires the
manufacturer to “make restitution in an amount equal to the
actual price paid or payable by the buyer . . . plus any incidental
damages to which the buyer is entitled under Section 1794.”
(Italics added.) The inclusion of the word “plus” indicates that
a buyer may receive damages available in the California
Uniform Commercial Code in addition to the statutory
restitution
amount
recoverable
under
section 1793.2,
subdivision (d)(2). As the Court of Appeal explained in Krieger
v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213,
the Act “supplements, rather than supersedes, the provisions of
the California Uniform Commercial Code.” (See also § 1790.3;
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NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
§ 1794, subd. (b) [incorporating specific damages provisions of
the Cal. U. Com. Code].
The California Uniform Commercial Code remedies
referenced in section 1794 stand separate and apart from the
remedies in section 1793.2, subdivision (d), and do not purport
to limit the statutory restitution remedy in any way. This
makes sense because the Act provides more extensive consumer
protections than the California Uniform Commercial Code.
(Krotin, supra, 38 Cal.App.4th at p. 301; see also Murillo, supra,
17 Cal.4th at p. 989 [the Act “ ‘regulates warranty terms,
imposes service and repair obligations on manufacturers,
distributors, and retailers who make express warranties,
requires disclosure of specified information in express
warranties, and broadens a buyer’s remedies to include costs,
attorney’s fees, and civil penalties.’ ”].) FCA cites no authority
in which the Act’s statutory restitution remedy has ever been
reduced by the provisions of the California Uniform Commercial
Code referenced in section 1794, and its proposed reading would
elevate the California Uniform Commercial Code over the
remedies provided in the Act and be contrary to the Act itself.
“The provisions of [the Act] shall not affect the rights and
obligations of parties determined by reference to the
Commercial Code except that, where the provisions of the
Commercial Code conflict with the rights guaranteed to buyers
of consumer goods under the provisions of [the Act], the
provisions of [the Act] shall prevail.” (§ 1790.3.
FCA’s reliance on Kwan, Bishop, and Kirzhner is
misplaced. These cases address whether certain damages not
explicitly enumerated in the Act were recoverable under it.
(Kwan, supra, 23 Cal.App.4th at p. 192 [emotional distress
damages not recoverable for violations of the Act]; Bishop,
20

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
supra, 44 Cal.App.4th at pp. 757–758 [emotional distress and
loss of use damages for time period plaintiff had no replacement
vehicle after defective vehicle was destroyed not recoverable
under Act]; Kirzhner, supra, 9 Cal.5th at p. 981 [registration
renewal and nonoperation fees incurred after purchase of
vehicle not recoverable under the Act as collateral charges, but
may be recoverable as incidental damages].) For various
reasons, these cases found it appropriate to turn to the
California Uniform Commercial Code provisions referenced in
section 1794 in order to determine whether such damages were
recoverable. But none of these cases holds the restitution
remedy may be reduced by reference to those California Uniform
Commercial Code provisions. (See Kwan, supra, 23 Cal.App.4th
at p. 187 [“Under section 1794, subdivision (b), the buyer’s
remedies under the Act include, in addition to the refund-or-
replace remedy of section 1793.2, subdivision (d), [California
Uniform Commercial Code] damages as” stated in
subsections (1) and (2) (italics added)]; Bishop, supra,
44 Cal.App.4th at p. 754 [in case of restitution, buyer is also
entitled to, inter alia, incidental damages and civil penalty];
Kirzhner, supra, 9 Cal.5th at pp. 971–972 [measure of damages
includes restitution and replacement remedies as well as
remedies allowed by the Cal. U. Com. Code].
FCA argues a few out-of-state cases support a conclusion
that the relevant provisions of the California Uniform
Commercial Code should reduce the statutory restitution
remedy.6 None of these cases, however, address the issue before
6
See Gast v. Rogers-Dingus Chevrolet (Miss. 1991
585 So.2d 725; Roneker v. Kentworth Truck Co. (W.D.N.Y. 1997
21

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
us: whether alternate California Uniform Commercial Code
remedies should reduce damages calculated pursuant to the
express statutory restitution formula contained in California’s
lemon law. The cases cited by FCA merely found that damages
for certain breaches of warranty were to be determined under
the relevant state equivalents of the model Uniform Commercial
Code. In California, as discussed above, the Uniform
Commercial Code provides additional damages affected
consumers can elect to pursue under section 1794 if they wish
but it does not displace the statutory restitution remedy. (See
Krotin, supra, 38 Cal.App.4th at p. 302.
In sum, we hold that “restitution” has the meaning
provided in section 1793.2, subdivision (d)(2)(B) and reducing a
damages award by the amount of a trade-in credit or sale is not
permitted by that statute or by section 1794’s incorporation of
California Uniform Commercial Code remedies. FCA’s reading
of sections 1794 and 1793.2, subdivision (d)(2) would force us to
“ignore the actual words of the statute in an attempt to vindicate
our perception of the Legislature’s purpose in enacting the
law[,]” which is something we cannot do. (Murillo, supra,
17 Cal.4th at p. 993.
B. Offsets for a Trade-in Credit or Sale Proceeds
Are Not Consistent with the Legislative History
of Sections 1794 and 1793.2, Subdivision (d) or
the Purpose of the Act
As discussed above, we conclude that the language of
section 1793.2, subdivision (d)(2) does not permit any reduction
977 F.Supp. 237; Hibbs v. Jeep Corp. (Mo.Ct.App. 1984
666 S.W.2d 792; Sanborn v. Aranosian (1979) 119 N.H. 969.
22

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
in the restitution award by the amount of a trade-in credit or
sale. Nonetheless, FCA’s contention that restitution as detailed
in section 1793.2 should have the same meaning as common law
restitution is not unreasonable on its face. By recovering the
full statutory restitution remedy after receiving value for the
vehicle in the form of a trade-in credit, it can be argued that
Niedermeier was placed in a better financial position than if she
had not purchased the vehicle. To resolve any potential
ambiguity, we consider the legislative history of sections 1793.2
and 1794 and the Act’s purpose. (Kirzhner, supra, 9 Cal.5th at
p. 972.) We conclude that even if the statute is amenable to
more than one reasonable interpretation, additional indicia of
legislative intent support our holding that at least where, as
here, a consumer has been forced to trade in or sell their vehicle
due to the manufacturer’s failure to promptly pay restitution
when its obligation arose, trade-in or sale proceeds do not reduce
the statutory restitution remedy.
The Legislature adopted the Act in 1970 to address
problems with enforcing consumer warranties for new products,
including the problem of manufacturers reaping the advertising
benefits of warranties without bearing the costs of promised
repairs. (Stats. 1970, ch. 1333, § 1, p. 2478 et seq.) The original
restitution remedy provided, “[s]hould the manufacturer be
unable to make such return of merchantable goods, he shall
either replace the goods or reimburse the buyer in an amount
equal to the purchase price paid by the buyer, less that amount
directly attributable to use by the buyer prior to discovery of the
defect.” (Former § 1793.2, subd. (c), added by Stats. 1970,
ch. 1333, § 1, p. 2481.
In 1982, the Legislature amended the Act in several ways.
It amended section 1793.2 to apply the “repair and replace”
23

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
provisions of the Act to “new motor vehicles” bought for personal
use.7 (Jensen v. BMW of North America, Inc. (1995
35 Cal.App.4th 112, 123; Stats. 1982, ch. 388, § 1, pp. 1720–
1723.) The Legislature also added section 1794 to the Act to help
consumers and courts understand the panoply of remedies
available to buyers under different laws for breach of a
consumer warranty by enumerating each of the remedies in one
statute. (Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th
1246, 1261; see also Dept. Consumer Affairs, Explanation and
Analysis of Assem. Bill No. 3560 (1981–1982 Reg. Sess.) Mar.
1982, p. 2 [“[t]he bill’s purpose and function is to consolidate and
restate in a single section of the . . . Act the remedies now
available to buyers under the Song-Beverly Act and other
California and federal laws”]; see also ibid. [“This bill is
essentially a consumer law ‘housekeeping’ bill whose function is
to make our consumer warranty law more coherent, rational,
understandable and effective”].) As originally enacted, section
1794 provided in pertinent part that “[t]he measure of the
buyer’s damages in an action under this section shall be as
follows: [¶] (1) Where the buyer has rightfully rejected or
justifiably revoked acceptance of the goods or has exercised any
right to cancel the sale, Sections 2711, 2712, and 2713 of the
Commercial Code shall apply. [¶] (2) Where the buyer has
7
As amended, section 1793.2, subdivision (d) provided,
“Should the manufacturer or its representative in this state be
unable to service or repair the goods to conform to the applicable
express warranties after a reasonable number of attempts, the
manufacturer shall either replace the goods or reimburse the
buyer in an amount equal to the purchase price paid by the
buyer, less that amount directly attributable to use by the buyer
prior to the discovery of the nonconformity.” (Stats. 1982,
ch. 388, § 1, p. 1721.
24

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
accepted the goods, Sections 2714 and 2715 of the Commercial
Code shall apply, and the measure of damages shall include the
cost of repairs necessary to make the goods conform.” (Former
§ 1794, subd. (b), added by Stats. 1982, ch. 385, § 2, p. 1716.
Although restitution and replacement were available remedies
since the enactment of the Song-Beverly Act, they were not
mentioned in the 1982 version of section 1794.
After these amendments to the lemon law, however, there
were numerous complaints from new car buyers concerning its
implementation, including that manufacturers were not paying
full restitution or replacement awards and were seeking
excessive offsets for rental cars. (See Dept. Consumer Affairs,
Enrolled Bill Rep. on Assem. Bill No. 2057 (1987–1988 Reg.
Sess.) Sept. 25, 1987, pp. 2–3; see also Assembly 3d reading
analysis of Assem. Bill No. 2057 (1987–1988 Reg. Sess.) as
amended June 11, 1987, at p. 4; Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 2057 (1987–1988 Reg. Sess.) as
amended August 17, 1987, p. 3.
As a result, the Legislature again amended the Act in
order to protect consumers. Among other things, the
Legislature amended section 1794 to clarify that a buyer’s
damages include the rights of replacement and reimbursement
and the California Uniform Commercial Code’s additional
remedies, and amended section 1793.2, subdivision (d) to
comprehensively explain how to calculate restitution. (See
Legis. Counsel’s Dig., Assem. Bill No. 2057 (1987–1988 Reg.
Sess.) p. 2 [“This bill would revise the provisions relating to
warranties on new motor vehicles to require the manufacturer
or its representative to replace the vehicle or make restitution,
as specified, if unable to conform the vehicle to the applicable
express warranties after a reasonable number of attempts”
25

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
(italics added)]; see also Stats. 1987, ch. 1280, §§ 1, 2, 4; id., § 9,
p. 4567 [amendment to section 1794 “does not constitute a
change in, but is declaratory of, existing law”].
FCA argues the 1982 version of section 1794 demonstrates
that the Legislature intended for damages under the Act to be
reduced by ordinary damages principles laid out in the
California Uniform Commercial Code. But there is no indication
in the legislative history that the reference to California
Uniform Commercial Code remedies in section 1794 was
intended to supplant or limit the statutory restitution remedy.
To the contrary, the history is clear that the statute was
intended to consolidate, not add to or subtract from, the existing
remedies for the enforcement of a consumer warranty. (Dept.
Consumer Affairs, Explanation and Analysis of Assem. Bill
No. 3560 (1981–1982 Reg. Sess.) Mar. 1982, pp. 1, 4.) Had the
Legislature intended for the statutory restitution remedy to be
limited by the California Uniform Commercial Code provisions
referenced in section 1794, “it would not have chosen such an
obscure mechanism to achieve its purpose.” (Murillo, supra,
17 Cal.4th at p. 992.
FCA also relies on legislative history addressing the 1970
version of section 1794 to argue that the Legislature intended to
apply ordinary contract rules whenever a consumer cannot
return a defective vehicle. All three documents FCA relies
upon — a letter from a legislative aide to Senator Song
addressing the meaning of some language in the Act and two
letters from the Legislative Counsel to Senators Cologne and
Song, respectively, expressing various opinions in response to
particular questions relating to the Act — are postenactment
documents and are entitled to little weight because they do not
reflect the legislative body enacting the statute. (Quintano v.
26

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062 [statements
of an individual legislator, including bill author, are generally
not considered in construing a statute; court’s task is to
ascertain the intent of the Legislature as a whole]; Coker v.
JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 690, citing
Bruesewitz v. Wyeth LLC (2011) 562 U.S. 223, 242 [“ ‘[p]ost-
enactment legislative history (a contradiction in terms) is not a
legitimate tool of statutory interpretation’ because ‘by definition
[it] “could have had no effect on the [Legislature’s] vote” ’ ”].
With respect to the letters from the Legislative Counsel, FCA
focuses on two responses addressing distinguishable factual
scenarios. The first considers whether a manufacturer can
refuse to replace, reimburse, or repair defective goods if (unlike
here) the goods are not returned to be serviced at a service
facility. The second asks whether a privately-owned public
utility has any liability under the Act if it sells consumer goods
and contracts with an independent contractor for installation.
The responses do not address, and therefore shed no light on,
the specific issue that is before us in the present case.
The legislative history reveals little legislative analysis
addressing the language of the current statutory restitution
remedy, including the meaning of “the actual price paid or
payable.” (See also Mitchell, supra, 80 Cal.App.4th at p. 39
[“ ‘interpretive commentary’ on the statute’s replacement or
refund remedy is practically nonexistent”].) Nevertheless, we
can draw insight from the history of the amendments to
sections 1793.2 and 1794. This history demonstrates that the
Legislature intended to lay out a precise method for calculating
restitution awards payable to buyers, including the amounts
allowed to be reduced from awards.
27

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
The evolution of the Act also indicates a legislative intent
to ensure buyers receive full compensation under the Act, to
make it easier for buyers to access all the benefits to which they
are entitled under applicable warranties, and to constrain
manufacturers from evading their statutory obligations. To this
end, since its enactment, the Act “has been amended numerous
times to broaden its consumer protection policy, expand the
classes of vehicles to which the lemon law applies, lessen the
types of defenses that can [be] asserted, and change the
statutory text in response to appellate decisions.” (Frank,
Lemon Law (Nov. 2016) 39 L.A.Law. 27, 32.) This counsels
against reducing statutory restitution awards by trade-in
credits or sales proceeds, when such reductions are not
enumerated or authorized in section 1793.2, subdivision (d).
Any such reduction would be inconsistent with the legislative
history and the Act’s consumer protective purpose.
C. The Act’s Labeling and Notification Provisions
Do Not Support an Offset to the Statutory
Restitution Remedy for a Trade-in Credit or
Sale Proceeds
FCA maintains that Niedermeier’s interpretation of the
statutory restitution remedy would undercut the labeling and
notification provisions in sections 1793.22 and 1793.23
(hereafter sometimes referred to as the labeling and notification
provisions). It echoes the Court of Appeal’s concerns that
Niedermeier’s interpretation “would incentivize buyers to
reintroduce defective vehicles into the market without the
warnings a manufacturer otherwise would have to provide” and
“would render the labeling and notification provisions largely
meaningless, a result contrary to the rules of statutory
construction.” (Niedermeier, supra, 56 Cal.App.5th at p. 1072.
28

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
In FCA’s view, no rational owner would return their defective
vehicle to the manufacturer if they could instead resell their
vehicles to third parties. The Court of Appeal similarly could
not “conceive why a buyer would ever return a vehicle to the
manufacturer rather than obtain the extra proceeds from a
resale or trade. Return of the vehicle to the manufacturer would
be the rare exception rather than the rule.” (Ibid.) We disagree.
As FCA concedes, sections 1793.22 and 1793.23 require
manufacturers, not consumers, to label defective vehicles as
lemons once they are reacquired. (§ 1793.22, subd. (f)(1
[manufacturers must provide a one-year warranty for all
defective vehicles transferred to it under the Act]; § 1793.23,
subds. (c)–(e).) Buyers have neither the obligation nor the
ability to label their defective vehicles lemons. Had FCA
promptly refunded Niedermeier when its obligation to do so
arose, the defective vehicle could have been reacquired and
labeled a lemon by the manufacturer. Buyers like Niedermeier
are only confronted with the possibility of selling or trading in
their defective vehicles after manufacturers have failed to
comply with their obligation to promptly replace or repurchase
the vehicle. When this occurs, buyers may have no choice but to
engage in self-help to relieve themselves of the burden of owning
or possessing a lemon. Contrary to the Court of Appeal’s focus,
it is manufacturers, not buyers who are forced to trade in or sell
their vehicles, who undercut the Act’s labeling and notification
provisions by failing to timely comply with the Act’s
requirements. (Figueroa, supra, 84 Cal.App.5th at pp. 713, 714;
see also Williams, supra, 5 Cal.App.5th at pp. 784–785.
Allowing buyers to recover full restitution, as defined in the
statute, incentivizes manufacturers to comply with their
obligations under the Act.
29

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
Neither FCA nor the Court of Appeal provide any basis for
their opinion that no rational owner would return their defective
vehicle or that returning a defective vehicle would become the
rare exception rather than the rule, and we question these
assumptions. Niedermeier made three separate requests to
return the vehicle after multiple attempts to repair it over four
years failed. It was not until FCA repeatedly declined to buy
back the vehicle that Niedermeier gave up, purchased a new
vehicle, and traded in the defective one. Even if a buyer is
entitled to recover the full statutory restitution remedy in an
action under section 1794, it is reasonable to believe that, like
Niedermeier, buyers will continue to attempt to return defective
vehicles before filing suit in order to avoid the time and trouble
of selling or trading them in to a third party and resorting to
litigation. The concurrence disagrees, maintaining that “[i]f
trade-in or resale always yielded the potential for double
recovery, one would expect a good number of consumers to go
that route.” (Conc. opn. of Kruger, J., post, at p. 15.) But
manufacturers can rather easily avoid a result in which buyers
resell defective cars simply by promptly complying with their
obligations under the Act. (See Figueroa, supra, 84 Cal.App.5th
at p. 713 [any windfall to the plaintiff was the direct result of
FCA’s willful violation of the Act, and “[h]ad FCA fulfilled its
duty under the [Act] to promptly replace or repurchase the
truck, there would be no such windfall”]; see also Williams,
supra, 88 Cal.App.5th at p. 714.
FCA and the Court of Appeal also overlook the fact that a
buyer’s decision to trade in or sell a vehicle is made in real time.
It would be quite risky for a buyer to choose to trade in or sell a
defective vehicle to a third party before a manufacturer is able
to comply with its statutory obligation to promptly repurchase
30

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
or replace the vehicle. The Act requires a buyer to deliver the
defective vehicle to the manufacturer’s service and repair
facility for the purpose of allowing the manufacturer a
reasonable number of repair attempts. (§ 1793.2, subds. (c), (d);
§ 1793.22, subd. (b); Kirzhner, supra, 9 Cal.5th at pp. 969, 971,
986; Krotin, supra, 38 Cal.App.4th at pp. 302–303 [“the Act does
not require consumers to take any affirmative steps to secure
relief for the failure of a manufacturer to service or repair a
vehicle to conform to applicable warranties — other than, of
course, permitting the manufacturer a reasonable opportunity
to repair the vehicle”]; Martinez, supra, 193 Cal.App.4th at
pp. 191, 193.) Once the manufacturer is unable to repair the
vehicle after a reasonable number of attempts, the
manufacturer’s obligation to promptly provide restitution to the
buyer arises. (§ 1793.2, subd. (d)(2); see also § 1794, subd. (b);
see also Kirzhner, supra, 9 Cal.5th at p. 986.) Thus, it is only
where the manufacturer fails to “promptly” provide restitution
that a buyer would be able to trade in or sell a defective vehicle
while also obtaining restitution from the manufacturer. If a
buyer were to trade in or sell the vehicle before affording the
manufacturer a reasonable number of opportunities to repair
the vehicle, the buyer would not be able to obtain restitution or
replacement remedies under the Act.8 (Kirzhner, supra, at
8
We are not faced with circumstances in which a
manufacturer has violated the Act but has a good faith and
reasonable belief that a statutory obligation to pay restitution
does not exist. Neither are we faced with a situation in which a
buyer sells or trades in a vehicle before a manufacturer has the
opportunity to comply with its obligation to promptly pay
restitution. We do not decide today how such facts might affect
the damages calculation; in this case, a jury found FCA not only
31

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
pp. 969, 971, 986; Krotin, supra, at pp. 302–303.) In this way,
the Act itself curbs the concern that buyers will not return
defective vehicles to the manufacturer for service and labeling.
FCA also argues the labeling and notification provisions,
“contemplate[] that, in exchange [for the full restitution
remedy], the buyer will return the car to the manufacturer. This
is made clear by Section 1793.23, which states in four different
places that a defective vehicle is ‘accepted for restitution’ by the
manufacturer.” FCA instructs us to assume, however, that
consumers who cannot return a vehicle are still entitled to
statutory restitution under section 1793.2. Indeed, FCA does
not challenge Martinez’s holding that a plaintiff does not need
to “possess or own the vehicle at issue in order to obtain
replacement or restitution pursuant to the Act.” (Martinez,
supra, 193 Cal.App.4th at p. 192.) Yet FCA reasons that in light
of section 1793.23, in situations where a consumer cannot return
the vehicle, any value the consumer received from a trade-in or
sale of the vehicle must nonetheless reduce the consumer’s
restitution award.
The “accepted for restitution” language in the Act,
however, is only present in the labeling and notification
provisions. (§ 1793.23, subds. (c)–(e).) It is notably absent from
both sections 1794 and 1793.2, subdivision (d)(2). The labeling
and notification provisions identify what a manufacturer must
do to comply with the Act when it reacquires a vehicle. The
provisions impose no limits on the remedies identified, and
concededly applicable, in sections 1794 and 1793.2,
subdivision (d)(2). Accordingly, this language does not require
failed to promptly pay Niedermeier restitution, but FCA also
willfully failed to comply with the Act.
32

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
a buyer’s restitution award to be reduced if the buyer does not
return their defective vehicle to the manufacturer.
Ultimately, the labeling and notification provisions “are
inapplicable in the situation where, as here, the manufacturer
elects not to reacquire the vehicle and the buyer is forced to seek
legal intervention.” (Williams, supra, 88 Cal.App.5th at p. 783.
These provisions do not require a buyer to return a defective
vehicle in order to receive restitution under the Act; they merely
place a duty on the manufacturer or dealer to notify subsequent
transferees that the car was reacquired due to a nonconformity.9
Once restitution is available to a plaintiff as a remedy, which
FCA concedes is the case here, the measure of restitution is as
described in section 1793.2, subdivision (d)(2), with no
reductions other than those expressly stated in that subdivision.
D. Additional Public Policy Considerations
Support Not Reducing a Restitution Award by a
Trade-in Credit or Sale Proceeds
There are a number of additional public policy reasons to
conclude the statutory restitution remedy does not permit a
reduction for a trade-in credit or sale proceeds.
9
The concurring opinion observes that the statutory
restitution remedy seems to be built on the premise that a buyer
returns the defective vehicle, the manufacturer accepts it, and
the manufacturer offers the buyer their choice of a refund or
replacement vehicle. (See conc. opn. of Kruger, J., post, at p. 9.
But as FCA acknowledges, the question of whether Martinez
was correctly decided is not before us, so we assume a buyer is
not required to return the defective vehicle to a manufacturer to
obtain restitution.
33

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
First, the Court of Appeal’s (and FCA’s) interpretation
would incentivize manufacturers to drag out the process of
offering restitution in hopes of paying reduced damages.
Specifically, manufacturers would be encouraged to wait for
consumers to become fed up with delays and give up and sell or
trade in their defective (if not dangerous) vehicles, at which
point the manufacturers could request that the consumers’
damages be reduced accordingly. If the statutory restitution
remedy can be reduced by a trade-in credit or sale proceeds,
manufacturers will be relieved of the obligation to pay the full
restitution amount required by statute. Such a rule would
encourage “the manufacturer’s unforthright approach and
stonewalling of fundamental warranty problems.” (Krotin,
supra, 38 Cal.App.4th at p. 303.)10
Similarly, allowing a reduction to the statutory restitution
remedy in actions pursuant to section 1794 would reward
manufacturers for delaying refunds when the manufacturer
“ha[s] complete control over the length of that delay, and an
affirmative statutory duty to replace or refund promptly.”
(Jiagbogu, supra, 118 Cal.App.4th at p. 1244; Williams, supra,
10
Niedermeier and amicus Consumers for Auto Reliability
and Safety argue that trade-in credits tend to be artificially
inflated and are not reflective of the actual value of the vehicle.
The prospect that a buyer would trade in a defective vehicle for
an artificially inflated value would provide an even greater
incentive for manufacturers to delay in repurchasing defective
vehicles. However, Niedermeier’s counsel advised the court as
to the Yukon’s purchase price; no evidence was introduced at
trial as to the Yukon’s purchase price or whether the trade-in
amount reflected the vehicle’s actual value. Thus, the court does
not credit the assertion that the trade-in amount Niedermeier
received was artificially inflated.
34

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
88 Cal.App.5th at p. 785 [manufacturer’s interpretation “would,
in essence, reward manufacturer for declining or not offering to
reacquire the vehicle”].) If a manufacturer fails to comply with
the Act, a buyer may spend months or years pursuing futile
repair attempts and years in litigation pursuing remedies. Any
delay in paying restitution increases the likelihood that a buyer
will be forced to trade in or resell the defective vehicle or
relinquish the vehicle to a lienholder, relieving manufacturers
of the obligation to label the vehicles lemons.
FCA contends that reducing the restitution remedy by the
amount of a trade-in credit or sale will not encourage delay.
According to FCA, there is no economic difference from the
manufacturer’s perspective between a scenario in which a buyer
returns the car to the manufacturer and the manufacturer is
liable for the purchase price of the vehicle, and a scenario in
which a buyer sells or trades in a car to a third party and the
manufacturer pays the buyer reduced damages. This argument
is not well taken. FCA ignores that manufacturers
independently benefit from delays that cause buyers to trade in
or sell defective vehicles because manufacturers are relieved of
the burden of complying with the Act’s labeling and notification
requirements. Not only that, incidental damages cease accruing
when buyers trade in or sell defective vehicles, further reducing
the amount manufacturers have to pay in damages. FCA’s
interpretation would result in significant incentives for delay.
Encouraging manufacturer delays would undermine the prompt
restitution obligation imposed on manufacturers under the Act
and
contravene
the
Act’s
pro-consumer
purpose.
“Interpretations
that
would
significantly
vitiate
a
manufacturer’s incentive to comply with the Act should be
35

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
avoided.” (Jiagbogu, supra, 118 Cal.App.4th at p. 1244; see also
Kwan, supra, 23 Cal.App.4th at p. 184.
The Court of Appeal was unpersuaded by the argument
that a buyer trading in a defective vehicle bears all or part of the
cost of the manufacturer’s delay, and observed that Niedermeier
“can recover the full purchase price through a combination of
the trade-in and restitution from defendant.” (Niedermeier,
supra, 56 Cal.App.5th at p. 1073.) The Court of Appeal fails to
account for the fact that buyers are always forced to bear a
burden when a manufacturer delays in promptly reimbursing or
exchanging a vehicle. These burdens may include considerable
stress and time diverted from work, school, family, or leisure
activities while attempting to repair or return a defective
vehicle. At a minimum, a manufacturer’s failure to promptly
reimburse a buyer imposes a financial burden on the buyer, who
must continue to shoulder payments for a defective vehicle
and — if the buyer can afford it — pay out of pocket for a new
vehicle. This, by itself, is inconsistent with the pro-consumer
purpose of the Act. If buyers cannot afford to buy a replacement
vehicle, they may have no choice but to continue driving a
defective or dangerous vehicle. Forcing consumers to engage in
self-help in order to avoid the ongoing impact of a
manufacturer’s delay is not what the Legislature intended.
The Court of Appeal’s interpretation of “actual price paid
or payable” as not including trade-in or sale amounts could also
compel buyers to choose replacement over restitution. Faced
with the choice of a manufacturer delaying payment of
restitution on the one hand, and a replacement option that
requires a manufacturer to provide an alternate vehicle that is
likely already available on the other hand, buyers may
ultimately select replacement. This, however, would be in direct
36

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
contravention of the Act’s explicit directive that “the buyer shall
be free to elect restitution in lieu of replacement, and in no event
shall the buyer be required by the manufacturer to accept a
replacement vehicle.” (§ 1793.2, subd. (d)(2).
FCA argues that manufacturers have “ample incentive” to
promptly comply with the Act because they are already subject
to attorney fee awards and civil penalties for willful violations
of the Act. The facts of this case prove otherwise. Niedermeier
took the vehicle in for repair a total of 16 times over four years,
rendering the vehicle out of commission for 75 days without it
ever being repaired. Niedermeier made three separate demands
for restitution — which she was not required to do under the Act
(see Krotin, supra, 38 Cal.App.4th at pp. 302–303) — but FCA
declined to repurchase the vehicle. Attorney fees and penalties
were a real possibility in this case, and in fact were imposed on
FCA for willfully violating the Act, but FCA still failed to
promptly comply with the Act. As Niedermeier points out, “the
most defective vehicles . . . are the vehicles most likely to be
traded-in for a safe vehicle, yet those are the ones by which a
manufacturer would reap the best benefit for its delay.” To the
extent FCA contends that manufacturers already have
sufficient incentives to comply with the Act or that buyers will
receive windfalls if the statutory restitution remedy is not
reduced by the trade-in credit or sale proceeds, these are
competing policy concerns that are more appropriately directed
to the Legislature. (See Brennon B. v. Superior Court (2022
13 Cal.5th 662, 696 [“The proper balancing of these competing
priorities is ultimately and unquestionably ‘a policy issue that
lies within the province of the legislative, rather than the
judicial, branch’ ”].
37

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
For these reasons, we decline to adopt a rule that reduces
a buyer’s statutory restitution award by a trade-in credit or sale
proceeds at least where, as here, a consumer has been forced to
trade in or sell the defective vehicle due to the manufacturer’s
failure to comply with the Act. Once restitution is available to
a plaintiff as a remedy, the measure of restitution is as described
in section 1793.2, subdivision (d)(2), with no reductions other
than those expressly stated in that subdivision. Our
interpretation is supported by the plain language of the Act, the
legislative history, and the consumer-protective purpose of the
Act. It is also “more consistent with the rule that courts should
liberally construe remedial statutes in favor of their protective
purpose . . . .” (Pineda, supra, 51 Cal.4th at p. 532.
The concurrence maintains a rule that categorically
entitles consumers to obtain the full statutory restitution
remedy without a reduction for trade-in or sale proceeds “would
raise significant questions of fairness.” (Conc. opn. of Kruger,
J., post, at p. 15.)11 To be sure, we do not mean to suggest that
11
The concurrence also argues that such a rule “would mean
that plaintiffs who buy luxury vehicles could wind up turning a
substantial profit if those vehicles later prove defective, while
plaintiffs who buy economy cars probably could not — for
reasons that have nothing to do with the extent of their actual
losses or the extent of the manufacturer’s wrongdoing.” (Conc.
opn. of Kruger, J., post, at p. 15.) Consumers who purchase
more expensive vehicles pay more as a matter of course for their
vehicles and thus are more likely to obtain more when they are
traded in or resold. The court does not assume, based on our
holding, that consumers will start buying vehicles with the
expectation that they will be defective and that manufacturers
will refuse to comply with the Act, so that they can sell or trade
38

NIEDERMEIER v. FCA US LLC
Opinion of the Court by Evans, J.
a consumer has the right to sell or trade in a vehicle at any time.
Our holding is narrower and applies to the measure of
restitution described in section 1793.2, subdivision (d)(2), in
actions brought pursuant to section 1794. A consumer still has
the obligation to permit manufacturers a reasonable
opportunity to repair the vehicle. Manufacturers must also
comply with their obligations under the Act, including the
obligation to promptly repurchase or replace vehicles and the
obligation to label vehicles lemons. Prompt compliance with the
Act will ensure manufacturers meet these obligations and that
defective vehicles end up in their possession for labeling.
III. DISPOSITION
As we conclude that neither a trade-in credit nor sale
proceeds reduce the statutory restitution remedy, at least where
a consumer has been forced to trade in or sell a defective vehicle
due to the manufacturer’s failure to comply with the Act, we do
not reach the issue of whether the amount a buyer recovers
should be assessed before or after calculating penalties. We
reverse the judgment of the Court of Appeal.
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
in the vehicles and bring actions under the Act hoping to realize
a profit.
39

NIEDERMEIER v. FCA US LLC
S266034
Concurring Opinion by Justice Kruger
Car manufacturer FCA US LLC willfully violated its
duties under California’s lemon law when it repeatedly refused
to accept the return of Lisa Niedermeier’s defective Jeep for
replacement or a refund of the $40,000 she paid for it.
Niedermeier eventually gave up on FCA and went to an
unaffiliated dealership, where she traded in the defective Jeep
for a working vehicle. Niedermeier sued FCA for her damages,
including a full $40,000 refund. FCA now argues that because
Niedermeier did not return the Jeep but instead traded it in for
another car, FCA is entitled to subtract from her damages the
likely inflated $19,000 trade-in credit she received for the Jeep.
Never mind that the reason Niedermeier did not return the
defective Jeep to FCA is that FCA had refused to accept it and
promptly pay restitution, in willful violation of California’s
lemon law.
FCA’s argument is all but self-refuting, and the court
rightly rejects it. The majority opinion holds that under
California’s lemon law, a car buyer is entitled to a full refund for
a defective vehicle even if the buyer has in the meantime traded
it in or sold it to a third party — with the qualification that this
rule applies “at least” where, as in this case, the buyer “has been
forced” to trade in or sell the defective vehicle because of “the
manufacturer’s failure to comply with the [Song-Beverly
Consumer Warranty] Act.” (Maj. opn., ante, at p. 3.) I write
1

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
separately to explain how I understand this holding, including
both the rule and the suggestion that the rule may have limits.
I also write to explain why, in my view, such limits are
important to a full understanding of the lemon law in light of its
overarching consumer-protection purposes.
As I read the law, if a car proves defective, the buyer
ordinarily must return the car to the manufacturer in order to
receive a replacement vehicle or refund. The car manufacturer
may then resell the returned car, but first must disclose to
prospective buyers that the car has been designated a lemon.
This usual order of operations ensures that original buyers are
appropriately compensated when their cars cannot be made to
conform to their warranties within a reasonable time, while also
protecting prospective buyers from inadvertently purchasing
vehicles that have a history of serious defects. But all bets are
necessarily off if the manufacturer willfully thwarts the buyer’s
efforts to return the vehicle for a replacement or refund, which
is what happened here. If the car buyer then engages in
reasonable self-help by selling the car or trading it in for another
vehicle, the manufacturer is not entitled to pocket the proceeds
and thereby profit from its willful misconduct.
I.
California’s lemon law, formally known as the Song-
Beverly Consumer Warranty Act (the Act), Civil Code section
1790 et seq., is a consumer protection law aimed specifically at
new car buyers, who often depend on those cars to get to work,
to take their children to school, and to handle myriad other daily
necessities of life. Among other things, the law places
affirmative obligations on car manufacturers to back up the
2

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
warranty promises made in connection with the sale of their
products.
The dispute in this case centers on the meaning of various
provisions of the lemon law addressing what happens when a
car manufacturer is unable to make a car conform to its
warranty after a reasonable number of attempts. One set of
provisions concerns a buyer’s remedies. The first of these
provisions, Civil Code section 1793.2, subdivision (d)(2) (section
1793.2(d)(2)), provides that if the manufacturer has had a
reasonable amount of time to repair the vehicle and still cannot
get it done, the manufacturer has an obligation to “promptly”
replace the defective vehicle or “make restitution” by refunding
the buyer. (See Kirzhner v. Mercedes-Benz USA, LLC (2020) 9
Cal.5th 966, 971.) Appellate case law makes clear that this
replace-or-refund obligation exists whether or not the buyer
asks; it is the manufacturer’s “affirmative duty to replace a
vehicle or make restitution to the buyer if the manufacturer is
unable to repair the new vehicle after a reasonable number of
repair attempts.” (Krotin v. Porsche Cars North America, Inc.
(1995) 38 Cal.App.4th 294, 303.
This process is meant to work without court involvement.
But if a manufacturer does not comply with its obligation to
promptly repurchase or replace the defective vehicle, the buyer
may turn to a second provision of the law, Civil Code section
1794 (section 1794), which creates “an action for the recovery of
damages and other legal and equitable relief.” (§ 1794, subd.
(a).) A successful claimant in a suit under section 1794 is
entitled to reasonable attorney’s fees and costs (id., subds. (d),
(e)(1)), as well as damages whose measure “shall include the
rights of replacement or reimbursement as set forth in
subdivision (d) of Section 1793.2, and” provisions of the
3

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
California Uniform Commercial Code governing the damages
ordinarily available to a buyer of nonconforming commercial
goods. (Id., subd. (b).
The law also provides for penalties to punish and deter
willful violations. Appellate case law treats the manufacturer’s
violation as not willful “if [its] failure to replace or refund was
the result of a good faith and reasonable belief the facts
imposing the statutory obligation were not present. This might
be the case, for example, if the manufacturer reasonably
believed the product did conform to the warranty, or a
reasonable number of repair attempts had not been made, or the
buyer desired further repair rather than replacement or
refund.” (Kwan v. Mercedes-Benz of North America, Inc. (1994
23 Cal.App.4th 174, 185.) If, however, a manufacturer violates
the statute without such a good faith and reasonable belief, the
judgment may include a civil penalty of up to two times the
amount of actual damages. (§ 1794, subd. (c).
That is the set of provisions governing the remedies
available to the buyer of a defective car, and which forms the
centerpiece of the dispute before us. There is also, however, a
second set of provisions relevant to our inquiry, which are the
provisions governing what’s supposed to happen to the car after
it is found to be defective. A car that has once been labeled a
lemon because it could not be made to conform to its warranty
within a reasonable time is not necessarily worthless, and it
may be resold. But to prevent reselling defective or once-
defective vehicles “without notice to the subsequent purchaser”
(Civ. Code, § 1793.23, subd. (a)(2)), the law imposes various
labeling and notification requirements on the manufacturer
that has “reacquired” a vehicle that is “required by law to be
replaced” or “accepted for restitution” under section 1793.2(d)(2
4

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
or under comparable laws in other jurisdictions (Civ. Code,
§ 1793.23, subd. (c); see also id., subds. (d)–(f)).
Specifically, before the manufacturer resells, leases, or
transfers the car, the manufacturer must instruct the
Department of Motor Vehicles to “inscribe the ownership
certificate with the notation ‘Lemon Law Buyback,’ ” and “affix
a decal to the vehicle” indicating that it has been designated a
“ ‘Lemon Law Buyback.’ ” (Civ. Code, § 1793.23, subd. (c); Veh.
Code, § 11713.12, subd. (a).) The manufacturer must also
provide written notice to the transferee of the nonconformities
reported by the original buyer or lessee and of any repairs
attempted to correct the nonconformity. (Civ. Code, §§ 1793.23,
subd. (d), 1793.24, subd. (a)(3)–(4).) The Act likewise prohibits
the sale, lease, or transfer of a vehicle “transferred by a buyer or
lessee to a manufacturer pursuant to [section 1793.2(d)(2)] or a
similar statute of any other state” absent disclosure of the
vehicle’s nonconformities, correction of those nonconformities,
and a one-year manufacturer warranty that the vehicle is free
of the nonconformities. (Id., § 1793.22, subd. (f)(1); see generally
Niedermeier v. FCA US LLC (2020) 56 Cal.App.5th 1052, 1065–
1066.
II.
The threshold question in this case is whether the plain
language of the statute forecloses FCA’s argument for
calculating Niedermeier’s damages by subtracting the trade-in
value of the Jeep from the original purchase price. The plain-
language argument goes something like this: Section 1794 says
that a car manufacturer that violates its lemon law duties must
pay damages including “replacement or reimbursement as set
forth in subdivision (d) of Section 1793.2.” (§ 1794, subd. (b).
5

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
And the restitutionary remedies in section 1793.2(d)(2) specify
precisely what this means. A manufacturer required to
reimburse the buyer for a defective car must pay the actual price
of the vehicle but may make reductions for nonmanufacturer
items installed by a dealer or the buyer, and the amount directly
attributable to the vehicle’s use by the buyer before first
delivering it for correction of the warranty nonconformity.
(§ 1793.2(d)(2)(B), (C).) But those provisions do not say
anything about reducing the reimbursement amount by the
trade-in or resale value a buyer receives for the defective vehicle.
By negative implication, then, a manufacturer may not reduce
the reimbursement amount by whatever proceeds the buyer
may have received through selling or trading in the car to a third
party.
The majority walks through this argument (maj. opn.,
ante, at pp. 10–23), but it also, in the end, acknowledges that a
“potential ambiguity” in the statutory language makes it
appropriate to consider legislative history and the purposes and
policies underlying the lemon law in arriving at the conclusions
the court reaches today (id. at p. 24). I emphatically agree the
statute is ambiguous.
Looking at sections 1793.2(d)(2) and 1794 in isolation, the
idea that the plain language of the provisions answers the
question has some superficial appeal. The difficulty with the
plain-language argument, however, is that it would seem to
prove too much. The restitutionary remedy in section
1793.2(d)(2) is not specific to cases like this one, in which a car
manufacturer has willfully violated its duties to make a prompt
offer of replacement or refund. Indeed, section 1793.2(d)(2) does
not address violations of those duties at all; it is what tells car
manufacturers what they must do in the first instance to avoid
6

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
violating their duties. By suggesting that section 1793.2(d)(2
categorically entitles a car buyer to trade in or sell a defective
vehicle to a third party, retain the proceeds, and still demand a
full refund of the purchase price (or even a brand-new
replacement vehicle from the manufacturer), the plain-language
argument would seem to provide an avenue for double recovery
in every lemon law case, regardless of whether the
manufacturer has done anything wrong. This is not the only
way — or even a particularly likely way — to understand the
text of the relevant remedial provisions.1
One reason is the one the majority expressly identifies:
Allowing across-the-board double recovery for lemon law
plaintiffs arguably overshoots what the Legislature was aiming
at when it provided for damages to include a right of
“restitution,” even if that right is statutory rather than based in
common law. (Maj. opn., ante, at p. 24; see Alder v. Drudis
1
The court in Martinez v. Kia Motors America, Inc. (2011
193 Cal.App.4th 187, 194, did appear to adopt this reading of
the language of the statute. But the actual holding of the case
did not depend on it. In Martinez, the buyer abandoned her
nonfunctioning car at the dealership after the dealer refused to
provide warranty coverage to repair it. The car was ultimately
repossessed. (Id. at p. 192.) There was no trade-in or resale to
contend with, no dispute about the proper amount of restitution,
and no question about the calculation of damages. The Court of
Appeal determined that nothing in the lemon law required
Martinez to possess the vehicle before pursuing damages for the
violations she asserted. (Id. at pp. 193–194.) Whether and to
what extent the Martinez opinion correctly reasoned through
the issue before it is beyond the scope of our inquiry in this case.
It suffices to observe that the actual holding of Martinez is not
inconsistent with a more nuanced understanding of the statute
that acknowledges its ambiguities.
7

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
(1947) 30 Cal.2d 372, 384 [“[t]he purpose of restitution as a
remedy for [contract] breach is the restoration of the status quo
ante as far as is practicable”].
But the more fundamental reason, as I see it, relates to
the relationship between section 1793.2(d)(2) and related
provisions governing what is supposed to happen to a car after
it has proved defective. If the statute does not specify that resale
or trade-in values are to be excluded from the “restitution” for
which section 1793.2(d)(2) provides, that may simply be because
the statute does not anticipate the scenario in which a car buyer
seeks a full refund or replacement vehicle despite having sold
the defective car to a third party.
Again, recall that section 1793.2(d)(2) is not written as a
remedy for manufacturer wrongdoing; it is, rather, the provision
that tells the manufacturer what it must do when a defective car
doesn’t live up to the warranty. The assumption running
through the statute appears to be that, in the ordinary course,
if it appears that a car cannot be made to conform to the
warranty within a reasonable number of repair attempts, the
manufacturer will offer replacement or restitution and will
reacquire the car in exchange.
This assumption is most clearly evident in the Act’s
labeling and notification provisions governing “Lemon Law
Buyback” (Civ. Code, § 1793.23), which impose on
manufacturers multiple requirements designed to disclose a
defective vehicle’s past before the vehicle can be sold to another
buyer. These provisions expressly refer to cars “accepted for
restitution” under section 1793.2(d)(2) — suggesting that the
cars will, in fact, be returned to the manufacturer in exchange
for the restitution described in that section. (Civ. Code,
8

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
§ 1793.23, subds. (c)–(e).) And, perhaps more fundamentally,
the labeling and notification provisions can serve their essential
purpose of protecting downstream consumers in the used-car
market only if the manufacturers have the chance to comply,
which means the cars must somehow find their way back into
the manufacturers’ hands.
None of this is, or should be, especially controversial.
Indeed, Niedermeier’s counsel acknowledged at oral argument
that the idea that a car buyer will return the defective vehicle
in exchange for replacement or full refund is “embedded” in the
statutory framework that describes what is supposed to
transpire when a manufacturer cannot conform a vehicle to its
warranty, even if the lemon law may not say so in explicit terms.
The restitutionary remedy in section 1793.2(d)(2) appears built
on this premise: The buyer returns the defective vehicle, the
manufacturer accepts it and in return offers the buyer her choice
of a refund or a replacement vehicle.2
2
Unsurprisingly, many other states’ lemon laws make the
return of the car an explicit requirement. (E.g., N.J. Stat. Ann.
§ 56:12-32(a)(1) [“the manufacturer . . . shall accept return of the
motor vehicle from the consumer” and “(1) . . . provide the
consumer with a full refund of the purchase price of the original
motor vehicle” (italics added)]; N.Y. Gen. Bus. Law § 198-a(c)(1
[“the manufacturer, at the option of the consumer, shall replace
the motor vehicle with a comparable motor vehicle, or accept
return of the vehicle from the consumer and refund to the
consumer the full purchase price” (italics added)]; R.I. Gen.
Laws § 31-5.2-3(a)(1) [“the manufacturer shall accept return of
the vehicle from the consumer or lessee and, at the consumer’s
or lessee’s option, refund the full contract price or lease price of
the vehicle including all credits and allowances for any trade-in
vehicle” (italics added)]; Wn. Rev. Code Ann. § 19.118.041(1
9

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
The problem we confront here raises a set of issues as to
which the statute provides no express instruction. What
happens if the buyer doesn’t return the vehicle — because, as
occurred here, the manufacturer refuses to take the car back —
and the buyer then trades it in or sells it to a third party? Is the
buyer entitled to a full refund or replacement? The statute
offers no clear answers.
To navigate this hazy area of the lemon law, we can look,
as the majority says, to the legislative history and, ultimately,
to the law’s purposes as they relate to the issue before us. (Maj.
opn., ante, at p. 24.) As I understand the majority opinion, the
dispositive consideration is an essentially equitable one that
focuses on the circumstances of this case and others like it. If
Niedermeier did not return the defective Jeep, it was not for lack
of trying. It was, rather, because FCA willfully refused to accept
the return of the Jeep and promptly pay restitution, as it was
statutorily required to do. If the result was that Niedermeier
ultimately sold the Jeep in a manner that undercut the labeling
and notification requirements, the fault belongs with FCA,
which effectively forced Niedermeier into that position. FCA
should not then be permitted to profit from its intransigence by
subtracting the likely inflated trade-in credit Niedermeier
received from the total amount it would otherwise owe
Niedermeier in damages. (Maj. opn., ante, at pp. 30–31, 35–38.
[“the manufacturer . . . shall, at the option of the consumer,
replace or repurchase the new motor vehicle” (italics added)]; see
also Martinez v. Kia Motors America, Inc., supra, 193
Cal.App.4th at pp. 196–197 [discussing additional jurisdictions
that require return of a defective vehicle for a lemon law
refund].
10

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
This is not a particularly novel concept, nor one unique to
the lemon law. It is, rather, essentially a statute-specific
application of the well-established equitable principle that “[n]o
one can take advantage of his own wrong.” (Civ. Code, § 3517.
The problem raised by the calculation of the “restitution” owed
to Niedermeier in this case, in other words, evokes the familiar
doctrine of unjust enrichment. The doctrine is “based on the
idea that ‘one person should not be permitted unjustly to enrich
himself at the expense of another, but should be required to
make restitution of or for property or benefits received, retained,
or appropriated, where it is just and equitable that such
restitution be made.’ ” (County of San Bernardino v. Walsh
(2007) 158 Cal.App.4th 533, 542.) “Typically, the defendant’s
benefit and the plaintiff’s loss are the same, and restitution
requires the defendant to restore the plaintiff to his or her
original position. [Citations.] The principle of unjust
enrichment, however, is broader than mere ‘restoration’ of what
the plaintiff lost.” (Ibid.) “The emphasis is on the wrongdoer’s
enrichment, not the victim’s loss. In particular, a person acting
in conscious disregard of the rights of another should be
required to disgorge all profit because disgorgement both
benefits the injured parties and deters the perpetrator from
committing the same unlawful actions again.” (Ibid.; see Ward
v. Taggart (1959) 51 Cal.2d 736, 741–742; Rest.3d Restitution
and Unjust Enrichment, § 1.
Consideration of unjust enrichment principles offers an
explanation for the conclusion that a manufacturer obligated to
pay lemon law damages may not withhold the amounts it would
otherwise save through its willful violation of section
1793.2(d)(2) — which is to say, its “conscious disregard” of the
buyer’s statutory rights and of its own statutory duties. (County
11

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
of San Bernardino v. Walsh, supra, 158 Cal.App.4th at p. 542;
see Rest.3d Restitution and Unjust Enrichment, supra, § 51,
subd. (4) [“unjust enrichment of a conscious wrongdoer . . . is the
net profit attributable to the underlying wrong”]; American
Master Lease LLC v. Idanta Partners, Ltd. (2014) 225
Cal.App.4th 1451, 1487 [same].) Through its misconduct —
unjustly refusing to accept Niedermeier’s Jeep for restitution
even after multiple repair efforts had failed to make the Jeep
safe to drive — FCA effectively “forced” Niedermeier to trade in
her Jeep for a working vehicle (maj. opn., ante, at pp. 3, 24, 39,
40), and improperly retained the full restitution to which she
was entitled under section 1793.2(d)(2). Considered in light of
unjust enrichment principles, the damages calculation
prescribed by sections 1794 and 1793.2(d)(2) cannot be
interpreted to reward FCA for this willful wrongdoing.
The trial court in this case invoked these principles when
it rejected FCA’s request for a reduction in damages, expressly
citing the tenet that “ ‘[n]o one can take advantage of his own
wrong.’ ” And in other cases — also, as it happens, against
FCA — courts have rejected similar requests for a reduction in
damages with the observation that FCA should not “be
compensated for its own willful violation of the law.” (Figueroa
v. FCA US, LLC (2022) 84 Cal.App.5th 708, 713; see also
Williams v. FCA US LLC (2023) 88 Cal.App.5th 765, 785
[agreeing with Figueroa and declining to interpret the Act to
“reward manufacturer” for its willful refusal to reacquire the
vehicle].) Regardless of whether Niedermeier would otherwise
be entitled to trade in her Jeep and pocket the proceeds, any
reasonable understanding of the lemon law refutes the idea that
FCA is entitled to profit from the course of action that led
Niedermeier to that point in this case.
12

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
Niedermeier invoked the requirements of the Act by
presenting her Jeep to FCA for repair; she also specifically asked
FCA to accept the Jeep for restitution when many repairs over
an extended period did not conform the Jeep to its warranty.
Niedermeier, in other words, tried to return her vehicle to FCA,
as the Act envisions, and would have been entitled to recover
full restitution as described in section 1793.2(d)(2) if FCA had
not willfully violated the Act and refused her return. Under
these circumstances, Niedermeier’s “rights of replacement or
reimbursement as set forth in subdivision (d) of Section 1793.2”
(§ 1794, subd. (b)), for purposes of measuring her damages,
include the full measure of restitution to which she would have
been entitled absent FCA’s willful violation of its duties and
conscious disregard of her rights.
III.
The majority opinion suggests — but does not outright
hold — that the result might be different in a different case. It
says that the statute entitles a plaintiff car buyer to a full
refund, without any deductions for trade-in or resale value, but
adds this qualification: “at least where, as here, a consumer has
been forced to trade in or sell a defective vehicle due to the
manufacturer’s failure to comply with the Act.” (Maj. opn., ante,
at p. 3.) The majority also makes clear that its holding is limited
to circumstances like those presented in this case, and is leaving
open whether the same rule would apply in a case involving a
good-faith, reasonable mistake about whether the Act’s replace-
or-refund provision applies to a particular vehicle. (Id. at
pp. 32–33, fn. 8.
In my view, the result the court reaches today makes sense
precisely because of the circumstances we confront. Although
13

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
the majority opinion leaves the limits of its holding for
exploration in a future case, those limits are, in my view,
important to a full understanding of the law.
There is no real question that a rule the majority applies
today results in something of a windfall for the buyer, in that it
leaves her better off than she was before she purchased the
defective car. (Accord, maj. opn., ante, at p. 24.) In a case where
she has been forced to sell the car because of the manufacturer’s
willful failure to promptly refund or replace the car in
accordance with the law, none of this matters. The reason the
buyer in Niedermeier’s position is entitled to a full refund is not
because all the money is necessary to make her whole; it is,
rather, because it is necessary for the manufacturer to
relinquish any claim on the money, in order to avoid rewarding
misbehavior and to avoid encouraging a repeat of the same
statute-defying stunt in future cases. (Cf., e.g., Center for
Healthcare Education & Research, Inc. v. International
Congress for Joint Reconstruction, Inc. (2020) 57 Cal.App.5th
1108, 1129 [the “ ‘profit-based measure of unjust enrichment
determines recoveries against conscious wrongdoers’ ” and
“ ‘may potentially exceed any loss to the claimant’ ”].)3
3
I do not mean to overstate the degree to which our holding
is likely to affect manufacturers’ existing incentives to do their
best to comply with the law. As the majority points out, the
prospect of hundreds of thousands of dollars in civil penalties
and attorney fees was not enough to deter FCA’s misbehavior in
this case. (See maj. opn., ante, at p. 38.) It is unclear to me, at
least, that the prospect of being denied a $19,000 trade-in credit
would have made a dispositive difference. But the point here is
not how effective any individual component of the monetary
remedy may be in deterring wrongdoing in any particular case.
14

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
But it is not hard to see why the Court of Appeal in this
case was concerned about adopting a rule that would extend
similar treatment across the board, to any buyer of a defective
vehicle who might choose to trade in or sell the vehicle for profit
rather than give it back to the manufacturer. Certainly some
buyers might choose continued repairs rather than getting rid
of the vehicle and “resorting to litigation.” (Maj. opn., ante, at
p. 31; see also Kwan v. Mercedes-Benz of North America, Inc.,
supra, 23 Cal.App.4th at p. 186 [the plaintiff “repeatedly agreed
to allow continued repair efforts rather than insisting on
replacement or refund”].) But a rule that guaranteed full
reimbursement on top of trade-in or resale profit would almost
certainly alter some consumers’ calculations. If trade-in or
resale always yielded the potential for double recovery, one
would expect a good number of consumers to go that route. And
as the Court of Appeal explained, the result would be to
undermine the operation of the labeling and notification
provisions, which depend on buyers returning their defective
cars to manufacturers rather than selling their unlabeled
lemons into the used-car market. (Niedermeier v. FCA US LLC,
supra, 56 Cal.App.5th at pp. 1071–1072.
An across-the-board rule giving lemon law plaintiffs a
categorical entitlement to full reimbursement (or else a new
replacement car) plus the proceeds of resale or trade-in would
also raise significant questions of fairness. A rule permitting
this sort of double recovery in every case would mean that
plaintiffs who buy luxury vehicles could wind up turning a
substantial profit if those vehicles later prove defective, while
The point is that such wrongdoing should not be rewarded in
any measure.
15

NIEDERMEIER v. FCA US LLC
Kruger, J., concurring
plaintiffs who buy economy cars probably could not — for
reasons that have nothing to do with the extent of their actual
losses or the extent of the manufacturer’s wrongdoing. It is
unclear why the Legislature would have set up a remedial
scheme that would authorize this additional recovery based
solely on the price tag of the car, and thus, by extension, the
financial means of the buyer.
By applying its holding “at least” in a case involving
circumstances like those before us — that is, a willful failure to
accept the return of a defective vehicle and make restitution —
the majority leaves open the possibility that the rule it
announces may be limited to such cases, and does not
necessarily apply across the board. As I see it, such a limit is
not only sound, but important to a complete understanding of
the statutory scheme. On that understanding, I concur in the
majority’s reversal of the judgment of the Court of Appeal.
KRUGER, J.
We Concur:
GROBAN, J.
JENKINS, J.

16

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Niedermeier v. FCA US LLC

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 56 Cal.App.5th 1052
Review Granted (unpublished)
Rehearing Granted

Opinion No. S266034
Date Filed: March 4, 2024

Court: Superior
County: Los Angeles
Judge: Daniel S. Murphy

Counsel:
Gibson, Dunn & Crutcher, Thomas H. Dupree, Jr., Matt Gregory,
Shaun Mathur; Clark Hill and David L. Brandon for Defendant and
Appellant.
Knight Law Group, Steve Mikhov, Roger Kirnos, Amy Morse; Hackler
Daghighian Martino & Novak, Sepehr Daghighian, Erik K. Schmitt;
Greines, Martin, Stein & Richland, Cynthia E. Tobisman, Joseph V.
Bui; Public Justice and Leslie A. Brueckner for Plaintiff and
Respondent.
Consumer Law Practice and Daniel T. LeBel for Consumers for Auto
Reliability and Safety as Amicus Curiae on behalf of Plaintiff and
Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Thomas H. Dupree, Jr.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
(202) 955-8547
Cynthia E. Tobisman
Greines, Martin, Stein & Richland LLP
6420 Wilshire Boulevard, Suite 1100
Los Angeles, CA 90048
(310) 859-7811

People v. Hardin

admin — Mon, 04 Mar 2024 20:52:54 +0000

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY HARDIN,
Defendant and Appellant.
S277487
Second Appellate District, Division Seven
B315434
Los Angeles County Superior Court
A893110
March 4, 2024
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Groban, and
Jenkins concurred.
Justice Liu filed a dissenting opinion.
Justice Evans filed a dissenting opinion.

PEOPLE v. HARDIN
S277487
Opinion of the Court by Kruger, J.
California’s youth offender parole statute offers
opportunities for early release to certain persons who are
incarcerated for crimes they committed at a young age. (Pen.
Code, §§ 3051, 4801.) When it was first enacted in 2013, the
statute applied only to individuals who committed their crimes
before the age of 18; the purpose of the statute was to align
California law with then-recent court decisions identifying
Eighth Amendment limitations on life without parole sentences
for juvenile offenders. In more recent years, however, the
Legislature has expanded the statute to include certain young
adult offenders as well. Under the current version of the
statute, most persons incarcerated for a crime committed
between ages 18 and 25 are entitled to a parole hearing during
the 15th, 20th, or 25th year of their incarceration. (Pen. Code,
§ 3051, subd. (b).) But not all youthful offenders are eligible for
parole hearings. The statute excludes, among others, offenders
who are serving sentences of life in prison without the possibility
of parole for a crime committed after the age of 18. (Id., subd.
(h).
Appellant Tony Hardin is currently serving a life without
parole sentence for a special circumstance murder he committed
at age 25. He contends that the youth offender parole statute
violates the Fourteenth Amendment’s equal protection
guarantee by irrationally discriminating against young adult
offenders sentenced to life without parole — including, in
1

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
particular, those sentenced to life without parole for special
circumstance murder. Agreeing with Hardin and disagreeing
with other appellate decisions to address the issue, the Court of
Appeal held the life without parole exclusion invalid for lack of
a rational basis.
We now reverse. The standard we apply here, rational
basis review, is necessarily deferential. The law recognizes that
“[i]t is both the prerogative and the duty of the Legislature to
define degrees of culpability and punishment, and to distinguish
between crimes in this regard.” (People v. Turnage (2012) 55
Cal.4th 62, 74.) Respect for the Legislature’s proper role — and
ours — means that we may not strike down its enactment under
a rational basis standard unless the challengers demonstrate
that “there is no ‘rational relationship between the disparity of
treatment and some legitimate governmental purpose.’ ” (Ibid.
Without foreclosing the possibility of other as-applied
challenges to the statute, we conclude that Hardin has not
demonstrated that Penal Code section 3051’s exclusion of young
adult offenders sentenced to life without parole is
constitutionally invalid under a rational basis standard, either
on its face or as applied to Hardin and other individuals who are
serving life without parole sentences for special circumstance
murder. Under California law, special circumstance murder is
a uniquely serious offense, punishable only by death or life
without possibility of parole. When it was considering whether
to expand the youth offender parole system to include not only
juvenile offenders but also certain young adults, the Legislature
could rationally balance the seriousness of the offender’s crimes
against the capacity of all young adults for growth, and
determine that young adults who have committed certain very
serious crimes should remain ineligible for release from prison.
2

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Hardin has not demonstrated that the Legislature acted
irrationally in declining to grant the possibility of parole to
young adult offenders convicted of special circumstance murder,
even as it has granted youth offender hearings to young adults
convicted of other offenses.
This conclusion does not turn on this court’s judgments
about what constitutes sound sentencing policy. It turns on the
deference we owe to the policy choices made through the
democratic process by the people of California and their elected
representatives. The legislative branch may continue to
consider the appropriate reach of the youth offender parole
statute in light of the recognized capacity of young persons for
growth and change. Hardin has not, however, established that
the legislative policy choices reflected in current law are
irrational and therefore impermissible as a matter of equal
protection.
I.
In 1989, Hardin robbed and killed an elderly neighbor.
Hardin was then 25 years old. A jury convicted Hardin of first
degree murder, among other offenses. The jury also found true
a special circumstance allegation that Hardin murdered the
victim during the commission of a robbery. Hardin’s conviction
for first degree murder with special circumstances carried a
mandatory sentence of either death or life in prison without the
possibility of parole. (Pen. Code, § 190.2, subd. (a); id., subd.
(a)(17)(A).) Although the prosecution had sought the death
penalty, the penalty phase jury declined to return a death
verdict. The trial court imposed a sentence of life in prison
without parole for the murder and stayed the sentences for the
other convictions.
3

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Decades later, Hardin filed a postjudgment motion to
develop and preserve evidence for later use in a youth offender
parole hearing under Penal Code section 3051 (section 3051).
(See People v. Franklin (2016) 63 Cal.4th 261, 283–284
(Franklin) [an offender who will later become eligible for a youth
offender parole hearing is entitled to an interim court
proceeding to develop and preserve evidence of youth-related
characteristics and circumstances at the time of the offense]; In
re Cook (2019) 7 Cal.5th 439, 458–459 [an offender whose
sentence is otherwise final may obtain a Franklin hearing by
filing a postjudgment motion in superior court].) In his motion,
Hardin acknowledged that, as an offender sentenced to life
without parole for a crime committed as a young adult, he is not
eligible for a youth offender parole hearing. (§ 3051, subd. (h).
He contended, however, that his exclusion violates the Equal
Protection Clause of the Fourteenth Amendment to the federal
Constitution. The superior court rejected the contention and
denied Hardin’s motion. The Court of Appeal, however,
reversed. (People v. Hardin (2022) 84 Cal.App.5th 273, 291
(Hardin).
On appeal, Hardin raised two equal protection arguments.
He first argued that section 3051 violates equal protection by
excluding young adult offenders sentenced to life without parole
while including juvenile offenders (that is, offenders younger
than 18 at the time of the offense) sentenced to life without
parole. The Court of Appeal rejected this argument. It
explained that the Legislature had a rational basis for
distinguishing between juvenile offenders and young adult
offenders, since a unique set of constitutional rules restricts
sentencing children to life without parole. (Hardin, supra, 84
Cal.App.5th at pp. 285–286, citing, inter alia, Miller v. Alabama
4

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
(2012) 567 U.S. 460 (Miller).) Hardin does not challenge the
Court of Appeal’s conclusion on this point.
Hardin next argued that section 3051 violates equal
protection by treating young adult offenders sentenced to life
without parole for special circumstance murder differently from
other young adult offenders serving parole-eligible life sentences
for other crimes. On this point, the Court of Appeal agreed with
Hardin. (Hardin, supra, 84 Cal.App.5th at p. 291.
Employing the two-step equal protection analysis
prescribed by our cases (see, e.g., Conservatorship of Eric B.
(2022) 12 Cal.5th 1085, 1102 (Eric B.)), the Court of Appeal
began by considering whether, in light of the purposes of the
challenged law, young adult offenders convicted of special
circumstance murder and sentenced to life without parole are
similarly situated to all other young offenders. The court
answered yes. It explained that the Legislature’s stated purpose
in enacting section 3051 was to permit “a determination
whether a person who committed a serious or violent crime
between the age of 18 and 25 has sufficiently matured and
outgrown the youthful impulses that led to the commission of
the offense.” (Hardin, supra, 84 Cal.App.5th at p. 287.) The
court concluded that all young offenders are similarly situated
from this standpoint, since a person’s potential for increased
maturity and growth is not crime-specific. (Ibid.
Turning to the next step of the analysis, the basis for the
disparate treatment of similarly situated groups, the court
concluded there was no rational basis for section 3051 to
distinguish between young adult offenders convicted of special
circumstance murder and sentenced to life without parole and
other young adult offenders. The court again adverted to the
5

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
stated purpose of section 3051: “[I]f, as the Legislature stated,
the goal of section 3051 was . . . to permit youth offenders a
meaningful opportunity for parole if they demonstrate increased
maturity and impulse control, then for that purpose there is no
plausible basis for distinguishing between same-age offenders
based solely on the crime they committed.” (Hardin, supra, 84
Cal.App.5th at p. 288; see id. at pp. 278–279.
The Court of Appeal acknowledged other appellate cases
had reached a different conclusion. In those cases, the courts
reasoned that the Legislature, in determining which young
adult offenders should be afforded opportunities for early
release, permissibly decided to take into account the seriousness
of the offender’s crime and rationally decided to exclude those
who had committed crimes sufficiently serious to warrant a
sentence of life without parole. (Hardin, supra, 84 Cal.App.5th
pp. 288–289 [citing cases].) But the court in this case rejected
this “superficially plausible justification” as “belied by the
statutory provisions that allow [a youth offender parole] hearing
for individuals who have committed multiple violent crimes
(albeit not special circumstance murder) and were sentenced to
a technically parole-eligible indeterminate state prison term
that is the functional equivalent of life without parole.” (Id. at
p. 289.) The court also deemed “illusory” any differences
between the culpability of individuals convicted of first degree
murder without special circumstances and first degree murder
with special circumstances. (Id. at p. 290.) The court relied for
this conclusion on a law review article finding that, as a result
of the expansion of the special circumstance statute over time,
at least one special circumstance could have been alleged in 95
percent of first degree murder cases. (Id. at p. 290 & fn. 11
[citing Com. on Revision of the Pen. Code, Annual Report and
6

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Recommendations (2021) p. 51, in turn citing Baldus et al.,
Furman at 45: Constitutional Challenges from California’s
Failure to (Again) Narrow Death Eligibility (2019) 16 J.
Empirical Legal Studies 693].) Ultimately, finding no rational
basis for the challenged life without parole exclusion, the court
concluded that “the disparate treatment of offenders like Hardin
cannot stand.” (Hardin, at p. 291.
We granted review to resolve the conflict between the
Court of Appeal’s decision in this case and the decisions of the
other appellate courts to address the issue.1
II.
A.
Section 3051 provides that, at a time designated in the
statute, the Board of Parole Hearings must hold a parole
hearing “for the purpose of reviewing the parole suitability of
any prisoner who was 25 years of age or younger . . . at the time
1
The Court of Appeal in this case was the first to conclude
that section 3051’s exclusion of young adults sentenced to life
without parole violated equal protection. Before Hardin, several
published appellate opinions had reached the opposite
conclusion. (See In re Williams (2020) 57 Cal.App.5th 427;
People v. Sands (2021) 70 Cal.App.5th 193; People v. Morales
(2021) 67 Cal.App.5th 326; People v. Jackson (2021) 61
Cal.App.5th 189; People v. Acosta (2021) 60 Cal.App.5th 769;
People v. Montano (2022) 80 Cal.App.5th 82.) More appellate
decisions have done so since Hardin. (People v. Ngo (2023) 89
Cal.App.5th 116, review granted May 17, 2023, S279458; People
v. Bolanos (2023) 87 Cal.App.5th 1069, review granted Apr. 12,
2023, S278803 [distinguishing Hardin on the ground that it
involved a murder conviction, as opposed to a sex offense
conviction carrying a life without parole sentence under the One
Strike law, Pen. Code, § 667.61].
7

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
of the controlling offense.” (§ 3051, subd. (a)(1); id., subd. (d).
How much time must pass before an eligible youth offender
receives a parole hearing depends on the length of the original
sentence for the “ ‘[c]ontrolling offense,’ ” a term defined to mean
“the offense or enhancement for which any sentencing court
imposed the longest term of imprisonment.” (Id., subd.
(a)(2)(B).) An offender sentenced to a determinate term becomes
eligible for parole after 15 years (id., subd. (b)(1)); an offender
sentenced to an indeterminate life term of fewer than 25 years
to life becomes eligible after 20 years (id., subd. (b)(2)); and an
offender sentenced to an indeterminate life term of 25 years to
life, or an offender sentenced to life without parole for a crime
committed before the age of 18, becomes eligible after 25 years
(id., subd. (b)(3), (4)).
Certain persons are, however, categorically ineligible for
youth offender parole hearings, including offenders sentenced
for multiple violent or serious felonies under the “Three Strikes”
law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12); offenders
sentenced for sex offenses under the One Strike law (id.,
§ 667.61); and offenders who, “subsequent to attaining 26 years
of age, commit[] an additional crime for which malice
aforethought is a necessary element of the crime or for which
the individual is sentenced to life in prison.” (§ 3051, subd. (h).
The statute also excludes those who, like Hardin, are sentenced
to life without parole for a controlling offense committed after
reaching the age of 18. (Ibid.) In Hardin’s case, as in most of
the appellate cases addressing the issue, the offense is first
degree murder with one or more special circumstances. (Pen.
Code, § 190.2.
8

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
B.
The Legislature first created this system of youth offender
parole hearings in 2013, following a series of court decisions
identifying Eighth Amendment limits on the sentencing of
juvenile offenders. (Stats. 2013, ch. 312, § 1; see generally
Franklin, supra, 63 Cal.4th at p. 277.) In Roper v. Simmons
(2005) 543 U.S. 551 (Roper), the high court held that the Eighth
Amendment forbids imposing the death penalty for crimes
committed before age 18, given the diminished culpability of
juveniles relative to adult offenders. (Roper, at p. 575.) Five
years later, the high court held in Graham v. Florida (2010) 560
U.S. 48 (Graham) that the Eighth Amendment also forbids life
without parole sentences for nonhomicide crimes committed
before age 18. (Graham, at p. 82.) Finally, in Miller, supra, 567
U.S. 460, the high court held that the Eighth Amendment
forbids mandatory life without parole sentences for homicides
committed before the age of 18. (Miller, at pp. 479–480; see id.
at pp. 477–478, 489.
In each case, the high court explained why juvenile
offenders are “constitutionally different” from adult offenders
for purposes of criminal sentencing. (Miller, supra, 567 U.S. at
p. 471.) Relying “not only on common sense — on what ‘any
parent knows’ — but on science and social science,” the court
identified three primary differences between juveniles and
adults. (Ibid.) First, the “hallmark features” of youth — “among
them, immaturity, impetuosity, and failure to appreciate risks
and consequences” — both diminish a child’s moral culpability
and increase the chances that the child’s moral shortcomings
will be reformed with age. (Id. at p. 477; see id. at p. 472.
Second, children “ ‘are more vulnerable . . . to negative
influences and outside pressures,’ including from their family
9

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
and peers; they have limited ‘contro[l] over their own
environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings.” (Id. at p. 471, quoting
Roper, supra, 543 U.S. at p. 569.) And finally, compared to an
adult, a juvenile’s character is “not as ‘well formed’ . . . his traits
are ‘less fixed’ ” and thus “his actions less likely to be ‘evidence
of irretrievabl[e] deprav[ity].’ ” (Miller, at p. 471, quoting Roper,
at p. 570.
In Graham and Roper, the court held that these features
of youth categorically preclude a death sentence, or a sentence
of life without parole for a nonhomicide offense. But in ruling
out life without parole sentences for nonhomicide offenses
committed by juveniles, the court in Graham “took care” to
distinguish homicide offenses, which raise different
considerations as a matter of “both moral culpability and
consequential harm.” (Miller, supra, 567 U.S. at p. 473.) When
confronted with the issue in Miller, the court did not
categorically rule out life without parole sentences for juvenile
offenders, instead concluding that before a court may impose
such a sentence, “a judge or jury must have the opportunity to
consider mitigating circumstances,” including the hallmark
features of youth and their relation to the offense. (Id. at p. 489.
The court further observed that, in light of “children’s
diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to th[e]
harshest possible penalty [of life without parole] will be
uncommon. That is especially so because of the great difficulty
we noted in Roper and Graham of distinguishing at this early
age between ‘the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile
10

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
offender whose crime reflects irreparable corruption.’ ” (Id. at
pp. 479–480, quoting Graham, supra, 560 U.S. at p. 68.
Not long after the high court issued its decision in Miller,
this court clarified in People v. Caballero (2012) 55 Cal.4th 262,
268 (Caballero) that Graham’s prohibition on life without parole
sentences for juvenile nonhomicide offenders applies to a term-
of-years sentence that is “the functional equivalent of a life
without parole sentence” — there, a sentence of 110 years.
(Ibid.) Without dictating “a precise timeframe” for holding
parole hearings for juvenile offenders who had received actual
or de facto life sentences for nonhomicide crimes, this court
explained that, under Graham, “a state must provide a juvenile
offender ‘with some realistic opportunity to obtain release’ from
prison during his or her expected lifetime.” (Id. at pp. 269, 268.
The Legislature enacted section 3051 to bring California
juvenile sentencing law into line with Graham, Miller, and
Caballero. (Stats. 2013, ch. 312, § 1; see Franklin, supra, 63
Cal.4th at p. 268; id. at pp. 278–280 [holding that the youth
offender parole statute remedied any Eighth Amendment
defects in the sentences of juvenile offenders].) In language
echoing the holdings of these cases, section 3051 provided for
youth offender parole hearings at which the Board of Parole
Hearings must provide “a meaningful opportunity” for release
(§ 3051, subd. (e)), giving “great weight to the diminished
culpability of youth as compared to adults, the hallmark
features of youth, and any subsequent growth and increased
maturity” (Pen. Code, § 4801, subd. (c)).
As initially enacted, section 3051 provided youth offender
parole hearings only for juvenile offenders incarcerated for
crimes committed before the age of 18. (Former § 3051, subd.
11

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
(a)(1), added by Stats. 2013, ch. 312, § 4.) But it did not include
all juvenile offenders; the statute excluded several categories of
individuals, including juvenile offenders sentenced to life
without possibility of parole. (Former § 3051, subd. (h), added
by Stats. 2013, ch. 312, § 4.) A different statute, enacted not
long before section 3051, had created an alternative mechanism
for relief that, with some exceptions, permitted juvenile
offenders sentenced to life without parole to petition for recall of
sentence and resentencing to a term that included an
opportunity for parole. (Stats. 2012, ch. 828, adding Pen. Code,
§ 1170, subd. (d).
Since the youth offender parole statute was first enacted,
the Legislature has expanded it in two primary respects. The
first area of change concerns juvenile offenders sentenced to life
without possibility of parole. In 2017, this court concluded the
recall and resentencing scheme did not provide an adequate
remedy for juvenile offenders who had been sentenced to life
without parole terms without adequate consideration of the
youth-related factors set out in Miller. (In re Kirchner (2017) 2
Cal.5th 1040, 1043 (Kirchner).) That same year, the Legislature
expanded section 3051 to include juvenile offenders sentenced
to life without parole, making them eligible for youth offender
parole hearings after their 25th year of incarceration. (Stats.
2017, ch. 684, § 1.5, adding § 3051, subd. (b)(4); see Assem. Com.
on Public Safety, Analysis of Sen. Bill No. 394 (2017–2018 Reg.
Sess.) as amended May 26, 2017, p. 1.
The second area of change concerns the statute’s
application to older offenders. In 2015, the Legislature raised
the age of eligibility for youth offender parole hearings to include
most young adults incarcerated for offenses committed before
the age of 23. (Stats. 2015, ch. 471, § 1.) In expanding section
12

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
3051 beyond the constitutional minimum age of 18 set out in
Graham and Miller, the Legislature considered scientific
evidence that neurological development, particularly in areas of
the brain relevant to judgment and decisionmaking, continues
beyond adolescence and into the mid-20’s. (See Sen. Com. on
Public Safety, Rep. on Sen. Bill No. 261 (2015–2016 Reg. Sess.
Apr. 28, 2015, p. 3.) In 2017, motivated by these same
considerations, the Legislature once again raised the age cut-off
for section 3051 parole hearings, this time to age 25. (Stats.
2017, ch. 675, § 1; see Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 1308 (2017–2018 Reg. Sess.) as amended Mar.
30, 2017, p. 2.
The expansion to young adults did not, however, include
all persons who committed crimes between the age of 18 and 25:
The Legislature carried forward preexisting exclusions,
including the exclusion for those sentenced to life in prison
without the possibility of parole. (See Assem. Com. on Public
Safety, Analysis of Assem. Bill No. 1308, supra, as amended
Mar. 30, 2017, p. 2.) Similarly, when it expanded the youth
offender parole system to include juvenile offenders sentenced
to life without parole, the Legislature preserved the life without
parole exclusion for youthful offenders who committed their
controlling offense after the age of 18. (See Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 394, supra, as amended
May 26, 2017, p. 1.
Hardin challenges the statute’s exclusion of young adult
offenders sentenced to life without parole as violative of equal
protection. As noted, in the trial court, Hardin challenged the
statute’s disparate treatment of juvenile and young adult
offenders sentenced to life without possibility of parole. But the
Court of Appeal in this case held, and he does not dispute, that
13

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
the Legislature acted reasonably in distinguishing between
offenses committed before and after the age of 18 because the
Eighth Amendment (and the law more generally) makes the
same distinction. (Hardin, supra, 84 Cal.App.5th at pp. 285–
286 [noting that age 18 generally marks the difference between
childhood and adulthood].
As the case comes to us, the parties agree that the
Legislature was not constitutionally obligated to expand youth
offender parole opportunities to young adults over the age of 18.
Hardin argues, however, that once the Legislature decided to
expand such opportunities to young adults, it could not
rationally treat those sentenced to life without parole differently
from those convicted of other serious crimes and serving lengthy
parole-eligible sentences. Once the Legislature decided to
include one class of young adult offenders, it was obligated to
include both.
Hardin effectively challenges the life without parole
exclusion on its face, in all of its applications. He also challenges
the exclusion more specifically as it applies to young adult
offenders who are, like him, serving life without parole
sentences following convictions for first degree murder with one
or more special circumstances.
III.
The Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution provides that no
state may “deny to any person within its jurisdiction the equal
14

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
protection of the laws.”2 (U.S. Const., 14th Amend.) This
provision is “essentially a direction that all persons similarly
situated should be treated alike.” (Cleburne v. Cleburne Living
Center, Inc. (1985) 473 U.S. 432, 439 (Cleburne).) “At core, the
requirement of equal protection ensures that the government
does not treat a group of people unequally without some
justification.” (People v. Chatman (2018) 4 Cal.5th 277, 288
(Chatman).
The degree of justification required to satisfy equal
protection depends on the type of unequal treatment at issue.
Courts apply heightened scrutiny when a challenged statute or
other regulation involves a suspect classification such as race,
or a fundamental right such as the right to vote, and accordingly
will demand greater justification for the differential treatment.
(E.g., Chatman, supra, 4 Cal.5th at p. 288; Massachusetts Bd. of
Retirement v. Murgia (1976) 427 U.S. 307, 312.) But when a
statute involves neither a suspect classification nor a
fundamental right, the “general rule is that legislation is
presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state
interest.” (Cleburne, supra, 473 U.S. at p. 440; see Chatman, at
pp. 288–289.) A court applying this standard finds “a denial of
equal protection only if there is no rational relationship between
2
The California Constitution also guarantees equal
protection of the law. (Cal. Const., art. I, § 7, subd. (a).) Hardin
does not raise any arguments specific to the California
Constitution, however, and we see “ ‘no reason to suppose’ that
federal equal protection analysis would yield a result different
from what would emerge from analysis of the state
Constitution.” (Chatman, supra, 4 Cal.5th at p. 288.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
a disparity in treatment and some legitimate government
purpose.” (Chatman, at pp. 288–289.
Here, both sides agree that rational basis review applies;
Hardin makes no argument that this case involves a suspect
classification or a fundamental right. (See Chatman, supra, 4
Cal.5th at pp. 282, 287 [rational basis review applied to evaluate
constitutionality of law prescribing different collateral
consequences for different types of criminal convictions]; People
v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson) [A
defendant “ ‘does not have a fundamental interest in a specific
term of imprisonment’ ”].
In the past, our cases have set out a two-part inquiry to
evaluate equal protection claims. “We first ask whether the
state adopted a classification affecting two or more groups that
are similarly situated in an unequal manner. [Citation.] If we
deem the groups at issue similarly situated in all material
respects, we consider whether the challenged classification” is
adequately justified. (Chatman, supra, 4 Cal.5th at p. 289.) In
a case, like this one, subject to rational basis review, the
question is “whether the challenged classification ultimately
bears a rational relationship to a legitimate state purpose.”
(Ibid.
The Courts of Appeal that have addressed the issue
presented here concerning the life without parole exclusion have
fractured over the proper analysis of the threshold “similarly
situated” inquiry. At this first step of the two-part equal
protection inquiry, the reviewing court asks “not whether
persons are similarly situated for all purposes, but ‘whether
they are similarly situated for purposes of the law challenged.’ ”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, quoting
16

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
People v. Gibson (1988) 204 Cal.App.3d 1425, 1438.) If the
challenging party fails to satisfy this threshold “ ‘similarly
situated’ ” inquiry, the equal protection analysis is at an end.
(Cooley, at p. 254.
The Court of Appeal in this case held that offenders
serving life without parole sentences are, for purposes of the
youth offender parole statute, similarly situated to offenders
serving parole-eligible life terms for offenses committed at the
same age. It then went on to hold that the statute’s disparate
treatment of the two groups is not adequately justified.
(Hardin, supra, 84 Cal.App.5th at pp. 287–288, 290.) Several
other courts have likewise concluded that the groups are
similarly situated for purposes of the challenged law, but that
the difference in treatment is justified. A still larger group of
courts have concluded that the groups are not similarly situated
for purposes of the law, while citing essentially the same reasons
other courts have cited at the justification step of the inquiry.
And the largest group of courts have avoided the question by
assuming without deciding that the two groups are similarly
situated and proceeding to hold that the difference in treatment
is justified under rational basis review.
Despite this state of uncertainty, the Attorney General
asks us to join the group of courts that have avoided the issue
by assuming without deciding that a young adult offender
serving a parole eligible life sentence is similarly situated to an
individual serving a sentence of life without parole for an offense
committed at a similar age. The Attorney General thus would
have us proceed directly to the operative question, which is
whether the disparate treatment has a rational basis.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
We have taken this assume-without-deciding approach to
the “similarly situated” inquiry in other recent equal protection
cases and could do the same here. (Chatman, supra, 4 Cal.5th
at p. 290 [moving to the second step of the equal protection
analysis without deciding the first, “similarly situated” step];
Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882
(Johnson).) But to do so would simply perpetuate the
uncertainty that has led courts to so many different conclusions
about how the “similarly situated” test ought to apply, and that
has so often led both this court and the Courts of Appeal to avoid
the test altogether.
There is a reason for this uncertainty. As we recognized
decades ago, in cases involving challenges to statutes like
section 3051, subdivision (h) that facially distinguish between
identifiable groups or classes of individuals, “[t]o ask whether
two groups are similarly situated in this context,” given the
interests underlying the law challenged, is essentially “the same
as asking whether the distinction between them can be justified
under the appropriate test of equal protection.” (Fullerton Joint
Union High School Dist. v. State Bd. of Education (1982) 32
Cal.3d 779, 798, fn. 19 (plur. opn.).) This is because one can only
reach the conclusion that two groups are similarly situated with
respect to the purposes of a particular law after considering the
law’s aims and how the differential treatment relates to those
aims. But the first, “similarly situated” step of the analysis
provides substantially less guidance about how this inquiry is to
proceed: “How similarly situated, precisely, relative to which
aims? These are questions courts already explore at the
justification step, using the tiers of scrutiny to guide their
answers.” (Eric B., supra, 12 Cal.5th at p. 1115 (conc. opn. of
Kruger, J.).) In the context of challenges like this one, the
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
similarly situated test serves no real purpose. At best it
duplicates the justification inquiry prescribed at the second step
of the analysis; at worst it creates an unnecessary threshold
obstacle to the adjudication of potentially meritorious
constitutional challenges; and in all events it injects
unnecessary uncertainty into the analysis, particularly in the
situations in which the challenged law reflects multiple,
sometimes competing aims.
Our cases purported to derive the threshold “similarly
situated” test from United States Supreme Court guidance, but
the high court itself has not employed any similar threshold test
in equal protection cases involving challenges to facial legal
classifications. (See, e.g., Cleburne, supra, 473 U.S. at pp. 439–
450.) Even when this court first began to speak in terms of a
“similarly situated” test, it did not initially understand this to
mean that courts must always engage in that inquiry as a
separate analytical step. (See In re Roger S. (1977) 19 Cal.3d
921; In re Eric J. (1979) 25 Cal.3d 522.) Rather, courts reciting
the rules of these cases over time came to lay out a two-step
analysis, even though no court ever identified precisely what
independent function the first step is supposed to serve.
Unsurprisingly, then, courts did not apply it consistently, often
adopting an approach of assuming-without-deciding that the
groups or classes facing disparate treatment are similarly
situated, or skipping the inquiry altogether, to reach the critical
question of whether the justification for the alleged disparate
treatment is adequate. (See, e.g., Chatman, supra, 4 Cal.5th at
p. 290; Johnson, supra, 60 Cal.4th at p. 882; Hernandez v. City
of Hanford (2007) 41 Cal.4th 279, 299 (Hernandez); People v.
Floyd (2003) 31 Cal.4th 179, 190.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
After directing the parties and inviting amici curiae to
address this issue, none has identified any substantive reason
why we should continue to prescribe a two-step analysis in cases
like this one, in which the only real question is whether a facial
difference in treatment is adequately justified by the purposes
the law was meant to serve. The primary concern raised by the
Attorney General relates to stare decisis — the idea that once
an issue is decided, it should ordinarily remain decided.
Stare decisis plays a vitally important role in our work as
a common law court; the policy of adherence to precedent
ensures the certainty, stability, and predictability on which the
rule of law depends. But stare decisis concerns have no real
place here. The doctrine “does not ‘ “shield court-created error
from correction” ’ ” but “permits us ‘to reconsider, and ultimately
to depart from, our own prior precedent in an appropriate
case.’ ” (People v. Mendoza (2000) 23 Cal.4th 896, 924.) Here,
none of the factors we have identified as relevant to the question
of adherence to precedent — including “the age of the precedent,
the nature and extent of public and private reliance on it, and
its consistency or inconsistency with other related rules of law”
(Trope v. Katz (1995) 11 Cal.4th 274, 288) — suggests we are
bound to preserve an analytical framework that has generated
uncertainty and confusion, with no discernible effect on the
actual outcomes of cases.
For these reasons, we now hold that, when plaintiffs
challenge laws drawing distinctions between identifiable groups
or classes of persons, on the basis that the distinctions drawn
are inconsistent with equal protection, courts no longer need to
ask at the threshold whether the two groups are similarly
situated for purposes of the law in question. The only pertinent
inquiry is whether the challenged difference in treatment is
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
adequately justified under the applicable standard of review.
The burden is on the party challenging the law to show that it
is not.
To be clear, we cast no doubt on the utility of “similarly
situated” inquiries in other contexts. In cases that do not
involve challenges to classifications appearing on the face of the
law, to ask whether a person has been treated differently from
another person similarly situated is typically how we determine
whether a person has been treated differently on the basis of
group membership or another actionable basis. We do not call
into question the established role the similarly situated inquiry
plays in, for instance, cases involving claims of group-based
discrimination against individuals, in which plaintiffs bear the
burden of showing disparate treatment along class lines, or so-
called “class of one” cases that do not allege differential
treatment on the basis of class membership. (See, e.g., United
States v. Armstrong (1996) 517 U.S. 456, 465–467; Village of
Willowbrook v. Olech (2000) 528 U.S. 562, 564.
Nor, in dispensing with the threshold “similarly situated”
test in equal protection challenges like this one, do we call into
question any of this court’s precedent that purported to dispose
of an equal protection challenge upon deciding that the
challenged disparate treatment did not involve groups that were
similarly situated for purposes of the law in question. As we
have explained, the conclusion in each of those cases could just
as well have been cast as a conclusion about whether the
difference in treatment was adequately justified under the
applicable standard of review. (See, e.g., People v. Salazar
(2016) 63 Cal.4th 214, 227 [noting individuals who commit a
capital crime after being convicted of a juvenile murder in
superior court are not similarly situated to those whose prior
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
murder was adjudicated in juvenile court, because the
Legislature may fairly distinguish these groups based on
culpability]; People v. Johnson (1992) 3 Cal.4th 1183, 1242–1243
[noting capital defendants are not similarly situated to those
subject to ordinary sentencing enhancements because of the
aggravating circumstances surrounding the capital offense].
Having thus clarified the governing analytical framework,
we turn to the central inquiry in this case: whether there is a
rational basis justifying section 3051’s disparate treatment of
individuals who, like Hardin, are serving sentences of life
without parole for special circumstance murder.
IV.
A.
Rational basis review “sets a high bar” for litigants
challenging legislative enactments. (Chatman, supra, 4 Cal.5th
at p. 289.) The reasons for this lie at the heart of our democratic
system of governance. “Coupled with a rebuttable presumption
that legislation is constitutional, [rational basis review] helps
ensure that democratically enacted laws are not invalidated
merely based on a court’s cursory conclusion that a statute’s
tradeoffs seem unwise or unfair.” (Ibid.
Under this deferential standard, we presume that a given
statutory classification is valid “until the challenger shows that
no rational basis for the unequal treatment is reasonably
conceivable.” (Chatman, supra, 4 Cal.5th at p. 289.) The
underlying rationale for a statutory classification need not have
been “ever actually articulated” by lawmakers, nor “be
empirically substantiated.” (People v. Turnage, supra, 55
Cal.4th at pp. 74, 75 (Turnage).) Evaluating potential
justifications for disparate treatment, a court reviewing a
22

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
statute under this standard must “treat the statute’s potential
logic and assumptions far more permissively than with other
standards of constitutional or regulatory review.” (Chatman, at
p. 294.) “If a plausible basis exists for the disparity, courts may
not second-guess its ‘ “wisdom, fairness, or logic.” ’ ” (Johnson,
supra, 60 Cal.4th at p. 881.) “[T]he logic behind a potential
justification need [not] be persuasive or sensible — rather than
simply rational.” (Chatman, at p. 289.)3
B.
Hardin’s central argument is that section 3051’s exclusion
of offenders sentenced to life without possibility of parole has no
rational basis because it is inconsistent with what he
understands to be the “sole” purpose behind the statute: to
create “a meaningful opportunity for release for youthful
3
The high court has on occasion applied a more searching
form of rational basis review that looks to the Legislature’s
actual motivations in enacting a statute rather than
hypothesized ones. (See, e.g., U.S. Dept. of Agriculture v.
Moreno (1973) 413 U.S. 528, 535–538.) The high court has
generally reserved this form of review for cases in which the sole
motivation underlying the enactment is baseless prejudice
against a politically unpopular group. (See, e.g., ibid.; Cleburne,
supra, 473 U.S. at pp. 448–450.) Those are not the
circumstances we confront here, and no party argues otherwise.
Justice Liu lays out an argument for reconsidering
rational basis review under our state equal protection guarantee
to require a focus on the Legislature’s actual, rather than
hypothesized, reasons for the challenged classification. (Dis.
opn. of Liu, J., post, at p. 21.) We note, however, that our
analysis focuses on the apparent motivations underlying the
challenged classification, as revealed in the statutory text and
history; we do not endeavor to exhaustively catalog all
conceivable concerns that might be hypothesized in support of
the challenged distinction.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
offenders, who were 25 or younger at the time of their crimes,
through demonstrated growth and rehabilitation.” Pointing to
the high court’s reasoning concerning juvenile offenders in
Miller, supra, 567 U.S. 460, and the scientific research that
prompted the Legislature to expand section 3051 to young
adults, Hardin contends that all youthful offenders, by virtue of
their age and the limitations associated with still-developing
judgment and impulse control, possess the same characteristics
that prompted the enactment and expansion of section 3051,
including diminished culpability and the potential for change.
Hardin acknowledges the core of the counterargument. “It
is both the prerogative and the duty of the Legislature to define
degrees of culpability and punishment, and to distinguish
between crimes in this regard.” (Turnage, supra, 55 Cal.4th at
p. 74.) Life without parole is the most severe sentence of
imprisonment in California law, applicable only in cases of
special circumstance murder and a small number of other
offenses the law regards as particularly serious.4 By excluding
persons sentenced to life without parole from youth offender
parole proceedings, the Legislature exercised its prerogative to
define degrees of culpability and punishment by leaving in place
4
These offenses include certain aggravated sex offenses
against minors (Pen. Code, § 667.61, subds. (j)(1), (l));
kidnapping for ransom resulting in death or bodily harm or
exposure to a substantial likelihood of death (id., § 209, subd.
(a)); certain felonies inflicting great bodily injury that are
committed by a “habitual offender” (id., § 667.7, subd. (a)); hate
crime first degree murder (id., § 190.03, subd. (a)); willful and
malicious ignition of an explosive device causing death (id.,
§ 18755, subd. (a)); and intentional train wrecking (id., §§ 218,
219).
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
longstanding judgments about the seriousness of these crimes
and, relatedly, the punishment for them.
Hardin asserts, however, that the seriousness of the
offenses “provides no basis for their exclusion because the
purpose of the statute was ameliorative, not punitive.” The
Court of Appeal made a similar point: “[I]f, as the Legislature
stated, the goal of section 3051 was to apply the Miller youth-
related mitigating factors to young adults up to the age of 26 in
light of neuroscience research that demonstrated the human
brain continues to develop into a person’s mid-20’s, and thus to
permit youth offenders a meaningful opportunity for parole if
they demonstrate increased maturity and impulse control, then
for that purpose there is no plausible basis for distinguishing
between same-age offenders based solely on the crime they
committed.” (Hardin, supra, 84 Cal.App.5th at p. 288.
This argument rests on the premise that “there was only
a single purpose underlying” section 3051. (Hernandez, supra,
41 Cal.4th at p. 300.) But as we explained in Hernandez,
legislation does not always — or even often — work this way.
Legislation is frequently the “ ‘product of multiple and
somewhat inconsistent purposes that led to certain
compromises.’ ” (Id. at p. 301, quoting U. S. Railroad
Retirement Bd. v. Fritz (1980) 449 U.S. 116, 181 (conc. opn. of
Stevens, J.).) This is only to be expected, for “[d]eciding what
competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence of
legislative choice.” (Rodriguez v. United States (1987) 480 U.S.
522, 526.) “Past cases establish that the equal protection clause
does not preclude a . . . legislative measure that is aimed at
achieving multiple objectives, even when such objectives in some
respects may be in tension or conflict.” (Hernandez, at p. 300.
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Section 3051 is such a measure. No one doubts that the
Legislature’s primary purpose in expanding section 3051 to
include young adult offenders was to give these young persons
the opportunity to obtain release based on demonstrated growth
and rehabilitation. Even though the Eighth Amendment
requires that this opportunity be afforded only to persons who
committed their crimes as juveniles, the Legislature determined
that comparable opportunities should be available to some older
offenders as well. But the structure and history of the expansion
make clear that the Legislature sought to balance this primary
objective with other, sometimes competing, concerns, including
concerns about culpability and the appropriate level of
punishment for certain very serious crimes.
This balancing has been evident throughout the history of
the youth offender parole statute. Even as initially drafted, the
statute did not categorically extend youth offender parole
hearings to all persons below the age of 18, but instead
distinguished between offenders based on the crimes they
committed. (Stats. 2013, ch. 312, § 1; former § 3051, added by
Stats. 2013, ch. 312, § 4; cf. Sen. Com. on Appropriations,
Analysis of Sen. Bill No. 394 (2017–2018 Reg. Sess.) Apr. 17,
2017, p. 2 [“[The bill that created section 3051] established a
parole process for persons sentenced to prison for certain crimes
committed before attaining 18 years of age” (italics added)].
Through multiple rounds of statutory amendments gradually
expanding the statute, the Legislature retained crime-based
distinctions, and the legislative history accompanying the
amendments confirms that these were deliberate choices. (See,
e.g., Assem. Com. on Appropriations, Analysis of Assem. Bill
No. 1308 (2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2
[“Some offenders are not eligible [for parole hearings] based on
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
the crime that was committed, or actions taken by the inmate
after the age of 23” (italics added)]; Sen. Com. on Public Safety,
Rep. on Sen. Bill No. 394 (2017–2018 Reg. Sess.) Mar. 21, 2017,
p. 4 [“This bill would apply the youth offender parole process to
juveniles sentenced to [life without parole]. . . . [¶] The bill
makes clear that . . . the provisions applying to juvenile [life
without parole] apply only to those sentenced before the age of
18” and thus exclude individuals sentenced to life without parole
for crimes committed after the age of 18].
The end result is that under the youth offender parole
statute as enacted and since amended, the nature of the
sentence received for a particular crime — what the statute
terms the “controlling offense” — sometimes determines
whether an individual is eligible for a youth offender parole
hearing in the first instance. And for those who are eligible, the
nature of the sentence determines when they will receive such a
hearing: whether after 15, 20, or 25 years. In other words, in
designing section 3051, the Legislature consciously drew lines
that altered the parole component of offenders’ sentences based
not only on the age of the offender (and thus the offender’s
amenability to rehabilitation) but also on the offense and
sentence imposed. The lines the Legislature drew necessarily
reflect a set of legislative judgments about the nature of
punishment that is appropriate for the crime.
It may be true, as Hardin argues, that these crime-based
categories are not rationally related to the Legislature’s purpose
of expanding opportunities for early release based on the
attributes of youth since, as Miller explained, the attributes of
youth are not “crime-specific.” (Miller, supra, 567 U.S. at
p. 473.) No doubt the Legislature — which consciously enacted
section 3051 in language that borrowed from Miller and other
27

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Eighth Amendment juvenile sentencing cases — was aware of
this point. The Legislature nonetheless crafted a statutory
scheme that assigns significance to the nature of underlying
offenses and accompanying sentences. The most natural
conclusion to draw from this is not, as Hardin would have it,
that the Legislature enacted a statute at odds with its own
rehabilitative ends, but instead that the Legislature — as
legislatures often do — was attempting to pursue other
“ ‘(perhaps even contrary) ends as well.’ ” (Hernandez, supra, 41
Cal.4th at p. 301, quoting Fitzgerald v. Racing Assn. of Central
Iowa (2003) 539 U.S. 103, 108.
The statutory framework indicates that the Legislature
aimed to increase opportunities for meaningful release for young
adult offenders, while taking into account the appropriate
punishment for the underlying crimes, depending on their
severity. These are essentially the same considerations involved
whenever the Legislature exercises its responsibility “for
determining which class of crimes deserves certain punishments
and which crimes should be distinguished from others.”
(Wilkinson, supra, 33 Cal.4th at p. 840.) They are also not
dissimilar from the considerations that prompted the high court
to distinguish, for Eighth Amendment purposes, between
sentencing juveniles for homicide offenses and sentencing
juveniles for nonhomicide offenses. (Miller, supra, 567 U.S. at
p. 473 [based on considerations of “both moral culpability and
consequential harm,” juvenile homicide offenders, unlike
juvenile nonhomicide offenders, may be sentenced to life without
possibility of parole, but only after individualized sentencing
that gives appropriate consideration to the mitigating attributes
of youth].) Much as the high court invoked culpability-related
concerns to distinguish among crimes in that context, it is
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
reasonable to infer that the Legislature considered such
concerns in this one.
Hardin argues that the Legislature’s decision to adopt a
parole process indicates it was unconcerned with culpability and
instead had only rehabilitation in mind. If the Legislature had
been concerned with calibrating the appropriate sentence for
particular crimes, Hardin reasons, the Legislature could have
instead enacted a statute providing for the recall of sentence and
resentencing, as it had done in Penal Code section 1170,
subdivision (d) — the predecessor statute to section 3051
discussed in Kirchner, supra, 2 Cal.5th at pages 1049–1050 —
and as it has done in other recently enacted ameliorative
statutes (e.g., Pen. Code, § 1172.6; see People v. Lewis (2021) 11
Cal.5th 952, 959–960). In Hardin’s view it is “telling” that the
Legislature instead enacted a parole process, since “California’s
parole process explicitly measures rehabilitation. . . . To the
extent the crime of commitment can be taken into consideration
at all, it is only for purposes of determining the present level of
risk.”
What Hardin says is true of the task of the Parole Board
at a parole hearing. (§ 3051, subd. (d), citing Pen. Code, § 3041;
see Pen. Code, § 3041, subd. (b)(1) [“The panel . . . shall grant
parole . . . unless it determines that the gravity of . . . current or
past convicted offense or offenses . . . is such that consideration
of the public safety requires a more lengthy period of
incarceration”].) But the Legislature has a different role, which
is to determine not only whether an incarcerated individual may
be suitable for release on parole, but when and whether it is
appropriate to afford that individual the opportunity to
demonstrate suitability for release. Parole eligibility is
frequently an important component of the sentence prescribed
29

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
for a crime, and so the Legislature frequently considers multiple
sentencing objectives — including both the prospects for
rehabilitation and the degree of culpability demonstrated by the
crime — in determining when, and if, a particular category of
offenders will become eligible for a parole hearing.
Hardin also argues that section 3051’s focus on the
“controlling offense” — that is, the single “offense or
enhancement for which any sentencing court imposed the
longest term of imprisonment” (§ 3051, subd. (a)(2)(B)) — is
indicative of the Legislature’s rehabilitative concerns rather
than concerns with appropriate punishment. Hardin points out,
for example, that the statute sets a 25-year eligibility date for
all youthful offenders who have received a sentence of 25 years
to life for any one offense or enhancement — even if another
individual with the same youth offender parole eligibility date
may be serving a much longer aggregate sentence on account of
other crimes; and even if the offender’s “controlling offense” is
merely an enhancement, rather than a substantive crime.
Hardin argues that the Legislature that enacted section 3051
therefore must not have been concerned with the relatively
greater culpability of the individual with the longer aggregate
sentence, or of the substantive crime to which the longer
enhancement was attached.
To be sure, the statute’s “controlling offense” framework
does rely on a certain amount of generalization about the
relationship between the lengthiest individual sentence the
offender has received and the culpability of the underlying
criminal conduct. But “ ‘[w]hen conducting rational basis
review, we must accept any gross generalizations and rough
accommodations that the Legislature seems to have made.’ ”
(Turnage, supra, 55 Cal.4th at p. 77.) Hardin’s argument
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
presumes there is only one way to evaluate culpability for these
purposes — by focusing on the offender’s entire criminal history
rather than examining an individual offense, or by focusing on
substantive crimes and ignoring the role of sentence
enhancements. But these are not the only possible ways to
evaluate culpability. That the Legislature may have prescribed
a measurement of culpability different from Hardin’s does not
mean the Legislature was not attempting to measure culpability
at all. While section 3051 is not, in terms, a statute prescribing
sentences for particular crimes, it does “set[] the consequences
of criminal offenses.” (Johnson, supra, 60 Cal.4th at p. 887.) It
is reasonable to infer that in setting those consequences through
operation of the youth offender parole system, the Legislature
balanced multiple considerations, including both concerns about
increasing opportunities for release for young adults able to
show growth and maturity and concerns about calibrating the
level of punishment appropriate for certain serious criminal
offenses.
Hardin also suggests that, by enacting a system of single-
offense-based staggered eligibility terms and exclusions, the
Legislature was attempting to capture the moment when, based
on the sentence received for a single offense or enhancement, “a
person might be first expected to demonstrate meaningful
rehabilitation.” Hardin provides no logical or evidentiary
support for this view. It is unclear how the Legislature could
have determined that 15 years marks the relevant line of
maturation for an offender who received a determinate sentence
for a controlling offense; 20 years marks the maturation line for
an offender sentenced to a life term of less than 25 years to life;
and so on. But more fundamentally, this is not an either/or
matter. Parole eligibility dates are an important component of
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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
the sentences prescribed for crimes. As such, they
presumptively reflect the full range of usual penological
considerations, including rehabilitative and retributive
purposes. Even assuming the staggered parole eligibility terms
reflect some set of legislative judgments about when an offender
is most likely to be rehabilitated, the critical point is that they
also necessarily reflect a judgment about the degree to which the
youth offender parole statute should reduce potential
punishment. Concerns about both appropriate punishment and
rehabilitation underlie this provision, just as the same balance
of penological considerations underlie the other provisions of the
statute. These are unquestionably legitimate purposes. (E.g.,
Wilkinson, supra, 33 Cal.4th at p. 840.) The exclusion that
Hardin challenges may or may not be rationally related to those
purposes — we will turn to that question below — but the
exclusion is not invalid simply because it reflects interests on
the other side of a legislative balance.
Finally, Hardin argues that the other exclusions from
youth offender parole eligibility set forth in section 3051,
subdivision (h) “further undermine the rationality of the
statute.” The only question before us here concerns the
constitutionality of the exclusion of youthful offenders sentenced
to life without parole, and there is no occasion for us to pass
judgment on the validity of any other exclusion. It suffices to
observe, however, that nothing in the other exclusions
undermines the conclusion that the Legislature that crafted the
youth offender parole statute was attempting to balance
multiple penological considerations in addition to rehabilitation.
Whether or not each of the other exclusions is adequately
32

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
justified in light of those considerations is beyond the scope of
our inquiry in this case.5
C.
Hardin argues that even if the life without parole
exclusion reflects culpability-related concerns, it nonetheless
fails rational basis review because there is no reasonable basis
to conclude that young adult offenders sentenced to life without
parole are more culpable or less deserving of the opportunity for
release than other young adult offenders. Hardin’s arguments
focus specifically on individuals who, like him, received life
without parole sentences following convictions for special
circumstance murder. The Legislature, he argues, “would have
had no rational basis to distinguish between youthful offenders
sentenced to life without parole for special circumstance murder
and youthful offenders sentenced either to the functional
equivalent of life without parole or to indeterminate life terms
for first degree murder. That is because, from a culpability
standpoint, these groups cannot rationally be distinguished.”
Hardin, however, fails to demonstrate that the life without
parole exclusion is irrational, and therefore unconstitutional, as
applied to individuals sentenced for special circumstance
murder.
In California, a conviction for first degree murder
generally results in a life sentence with parole eligibility after
5
We do not, for instance, decide the issue presented in
People v. Williams (2020) 47 Cal.App.5th 475, review granted July
22, 2020, S262229, in which the Court of Appeal held that section
3051, subdivision (h) violates equal protection principles by
excluding youthful offenders convicted and sentenced for
aggravated sex crimes under the One Strike law (Pen. Code
§ 667.61) from youth offender parole consideration.
33

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
25 years. (See Pen. Code, § 190, subd. (a); id., §§ 190.1–190.5.
Penal Code section 190.2 (section 190.2) lists special
circumstances that, under California law, mark a first degree
murder particularly egregious and thus render the perpetrator
eligible for the death penalty, consistent with Eighth
Amendment requirements. (People v. Bacigalupo (1993) 6
Cal.4th 457, 467–468 [the “special circumstances” statute
performs the constitutionally required function of “ ‘narrowing’ ”
the “class of murderers eligible for the death penalty”].) If a
defendant is convicted of first degree murder with a special
circumstance under section 190.2, there are only two possible
sentences: death or life without the possibility of parole. (Id.,
subd. (a).
To understand the function of special circumstances in
California’s capital sentencing law is to understand why Hardin
faces a particularly difficult task in establishing that the
Legislature’s decision to exclude offenders convicted of special
circumstance murder from the youth offender parole system is
“so devoid of even minimal rationality that it is unconstitutional
as a matter of equal protection.” (Chatman, supra, 4 Cal.5th at
p. 289.) The core of Hardin’s argument is that the Legislature
could not rationally conclude that a conviction for special
circumstance murder is a reliable indication of the seriousness
of an offense or the culpability of the offender, such that it could
rationally decide to exclude the offender from receiving the
youth offender parole consideration to which other young adults
are statutorily entitled. In making this argument, Hardin does
not focus on any single special circumstance or any particular
factual scenarios; his argument is a categorical one, aimed at
special circumstance murder in general. This argument about
the relative insignificance of special circumstance murder, as a
34

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
category, is inconsistent with what are by now legions of
decisions holding that special circumstance murder is
sufficiently serious and morally culpable as to justify imposing
the most severe sanctions available under the law, up to and
including death.
In the Eighth Amendment context, this court has
consistently rejected arguments that section 190.2’s potential
coverage is too broad to perform its constitutionally required
function of identifying those convicted of murders whose crimes
are sufficiently egregious to warrant the law’s most severe
penalty.6 We have explained why various challenged provisions
of section 190.2 adequately separate the most egregious first
degree murders — those deserving of the most severe
punishment available — from the rest. (See, e.g., People v.
Anderson (1987) 43 Cal.3d 1104, 1147 [“[B]y making the felony
murderer but not the simple murderer death-eligible, a death
penalty law furnishes the ‘meaningful basis [required by the
Eighth Amendment] for distinguishing the few cases in which
[the death penalty] is imposed from the many cases in which it
is not’ ”].
Here, for example, Hardin was convicted of murdering his
victim in the course of robbing her. We have explained why the
6
See, e.g., People v. Wilson (2023) 14 Cal.5th 839, 865–866;
People v. Thomas (2023) 14 Cal.5th 327, 408; People v. Ramirez
(2022) 13 Cal.5th 997, 1160; People v. Parker (2022) 13 Cal.5th
1, 89; People v. Wright (2021) 12 Cal.5th 419, 455–456; People v.
Scully (2021) 11 Cal.5th 542, 610; People v. Schultz (2020) 10
Cal.5th 623, 682; People v. Frederickson (2020) 8 Cal.5th 963,
1026; People v. Capers (2019) 7 Cal.5th 989, 1012–1013; People
v. Brooks (2017) 3 Cal.5th 1, 114–115; People v. Johnson (2016
62 Cal.4th 600, 654–655.
35

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
law treats robbery-murder as more culpable than simple
murder. The special circumstance is limited to those defendants
who commit “a ‘willful, deliberate and premeditated’ murder
‘during the commission’ of a robbery or other listed felony”
rather than “when the defendant’s intent is not to steal but to
kill and the robbery is merely incidental to the murder.” (People
v. Green (1980) 27 Cal.3d 1, 61.) The law treats as particularly
egregious a murder “in cold blood in order to advance an
independent felonious purpose, e.g., who carried out an
execution-style slaying of the victim of or witness to a holdup, a
kidnaping, or a rape.” (Ibid.) “[T]he purpose of this special
circumstance is to make eligible for the most severe punishment
those defendants who escalate a serious felony into a murder,
thereby attempting to deter such escalation.” (People v. Mora
and Rangel (2018) 5 Cal.5th 442, 520 (conc. & dis. opn. of Liu,
J.).
Given this body of case law, it is difficult to see how the
Legislature that enacted section 3051 could have acted
irrationally in singling out special circumstance murder as a
particularly culpable offense. In concluding otherwise, the
Court of Appeal in this case pointed to a law review article’s
finding that, because of the expansion of the special
circumstances over the years, at least one special circumstance
could be alleged in many if not most first degree murder cases,
“leaving the decision whether a life without parole sentence may
be imposed to the discretion of local prosecutors, rather than a
matter of statewide policy.” (Hardin, supra, 84 Cal.App.5th at
p. 290; id. at p. 290, fn. 11, citing Com. on Revision of the Pen.
Code, supra, Annual Report and Recommendations, p. 51, in
turn citing Baldus et al., Furman at 45: Constitutional
Challenges from California’s Failure to (Again) Narrow Death
36

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Eligibility, supra, 16 J. Empirical Legal Studies at pp. 713–714
(Baldus study).) Hardin now invokes the same article in support
of his challenge to section 3051’s disparate treatment of
individuals sentenced for special circumstance murder.
Hardin’s argument is not that prosecutorial discretion
itself offends equal protection. (See People v. Keenan (1988) 46
Cal.3d 478, 505, 506 [rejecting the argument that “prosecutorial
discretion to select those eligible cases in which the death
penalty will actually be sought” in and of itself “offend[s]
principles of equal protection,” and explaining that “[m]any
circumstances may affect the litigation of a case chargeable
under the death penalty law. These include factual nuances,
strength of evidence, and, in particular, the broad discretion to
show leniency”]; see also United States v. Batchelder (1979) 442
U.S. 114, 125 [rejecting an equal protection challenge to “the
discretion a prosecutor exercises when deciding whether to
charge under one of two statutes”].) Nor does he bring or
develop a claim that prosecutorial discretion has been exercised
in an arbitrary or invidious manner. Rather, in light of the
findings of the cited law review article, Hardin “challenges the
Legislature’s ability to rely on a distinction between two
groups — youthful offenders convicted of special circumstance
murders and youthful offenders convicted of first degree
murders — that collapses on further scrutiny.”
We have previously considered a similar argument raised
in the Eighth Amendment context. In People v. Frye (1998) 18
Cal.4th 894, 1028–1029 (Frye), a capital defendant relied on “a
statistical analysis based on an examination of published
appeals from murder convictions for the years 1988–1992” that
showed “virtually all first degree murders are death eligible.”
The defendant in that case attributed this result to “the broad
37

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
interpretation of the lying-in-wait special circumstance and the
expansive sweep of the felony-murder special circumstance.”
(Id. at p. 1029.) We rejected the argument, citing case law
upholding the validity of both the lying-in-wait special
circumstance and the felony-murder special circumstance in
cases in which the defendant did not harbor an intent to kill but
was instead a major participant in a felony who acted with
reckless indifference to human life. (Ibid., citing, inter alia,
People v. Morales (1989) 48 Cal.3d 527, 557–558 & People v.
Marshall (1990) 50 Cal. 3d 907, 946.
Our treatment of the issue in Frye was admittedly terse,
and it relied on a different study than the one on which Hardin
now relies. But based on the arguments and evidence that have
been presented to us here, we have no adequate basis to fault
the Legislature for distinguishing, as a categorical matter,
between a conviction for special circumstance murder and a
conviction for a different homicide offense, as the law has long
done.
At the outset, we note that the Baldus study on which
Hardin relies is not part of the record in this case, having been
first raised not by the parties but by the Court of Appeal in its
opinion. (See Hardin, supra, 84 Cal.App.5th at p. 290.) The
study’s findings were not litigated in the trial court, so they have
never been the subject of any sort of adversarial testing that
would afford us insight into either the methodology employed or
the ultimate accuracy or significance of the results. To strike
down an act of the Legislature as irrational based on a set of
untested empirical findings would be antithetical to multiple
settled principles of judicial review.
38

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
Even if we were to take the study’s findings at face value,
however, they do not support Hardin’s claim that it is, as a
categorical matter, irrational to treat individuals convicted of
first degree special circumstance murder differently from
individuals convicted of first degree murder without special
circumstances. The study neither says nor suggests that
California’s special circumstance law is categorically invalid.
Rather, as the Court of Appeal noted in its opinion, the study
appears to suggest that certain special circumstances, added
through various amendments after the initial enactment of
section 190.2, have led to the results found in the study.7 (See
Hardin, supra, 84 Cal.App.5th at p. 290.) But Hardin makes no
challenge specific to any particular special circumstance or
special circumstances added or changed by postenactment
7
As Justice Liu notes, the Baldus study also reports that
robbery-murder is factually present in a majority of special
circumstance murder cases. (Dis. opn. of Liu, J., post, at p. 38.
But standing alone, that finding has no clear relevance; a special
circumstance is not legally invalid simply because it may be the
most frequently recurring form of special circumstance murder.
Justice Liu also invokes a different study, cited in the
Baldus study but not raised by either party to this case, in
support of the view that “ ‘the felony murder special
circumstances alone defeat any possibility of genuine
narrowing.’ ” (Dis. opn. of Liu, J., post, at p. 38.) Particularly
without any adversarial testing or argument concerning the
relationship between this limited set of empirical findings and
the Eighth Amendment’s narrowing requirement, we have no
adequate basis for drawing this sweeping conclusion, which
would call into question a substantial body of precedent of both
this court and of the United States Supreme Court. (See Pulley
v. Harris (1984) 465 U.S. 37, 51, fn. 13, 53 [upholding the 1978
version of the special circumstance murder statute]; Frye, supra,
18 Cal.4th at pp. 1028–1029.
39

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
amendments. (The special circumstance finding at issue in
Hardin’s own case is based on a provision of the law that dates
back to the initial enactment of section 190.2. (See Stats. 1973,
ch. 719, § 5, pp. 1299–1300.)) While we do not foreclose the
possibility of other challenges to the distinctions drawn by the
special circumstances statute based on a more robust record or
a more focused as-applied inquiry, Hardin has not carried his
burden to demonstrate that legislative reliance on the special
circumstance murder statute in section 3051, subdivision (h) is
categorically irrational.
Hardin next argues that an individual who commits
special circumstance murder may not actually be more culpable
than an offender who commits a string of other violent crimes.
Agreeing with Hardin, the Court of Appeal raised for
comparison two hypothetical offenders who would be eligible for
a section 3051 parole hearing: (1) “a 20 year old who shot and
killed his victim one day, committed a robbery the next, and was
sentenced to an indeterminate term of 50 years to life”; and
(2) an individual “who committed multiple violent crimes . . .
and received a parole-eligible indeterminate life term that far
exceeded his or her life expectancy.” (Hardin, supra, 84
Cal.App.5th at p. 289.) In the court’s view, these crimes “cannot
rationally” be considered less severe than “[t]he crime of a 20-
year-old offender who shot and killed his victim while
attempting to commit robbery and was sentenced to life without
parole.” (Ibid.) Yet section 3051 would deny a parole hearing to
that offender. The court concluded that “[b]y defining the youth
parole eligible date in terms of a single ‘controlling offense,’
rather than by the offender’s aggregate sentence, the
Legislature has eschewed any attempt to assess the offenders’
40

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
[sic] overall culpability, let alone his or her amenability to
growth.” (Hardin, at p. 289.
That view again rests on the assumption that the
Legislature is required to evaluate culpability in a particular
way — a way that would, essentially, regard special
circumstance murder as similar in culpability to a string of other
violent crimes that leads to technically parole-eligible sentences.
But the Legislature that enacted section 3051 was not obligated
to see things this way. Indeed, the law in general does not see
things this way: In the criminal law, there is no violent crime
or set of violent crimes considered more serious, or that trigger
more severe punishment, than special circumstance murder.
We thus cannot say that the decision to deny a parole hearing to
an offender convicted of special circumstance murder is
irrational, even if it is possible that in certain cases some might
consider an individual offender convicted of multiple violent
crimes more culpable, in a holistic sense, than an individual
convicted of special circumstance murder. (Turnage, supra, 55
Cal.4th at pp. 77–78 [“When conducting rational basis review
. . . [a] plausible reason for distinguishing between [two groups
of individuals] need not exist in every scenario in which the
statutes might apply”].
Hardin notes that we have described an aggregate
sentence that fixes parole eligibility outside of an offender’s life
expectancy as the “functional equivalent of a life without parole
sentence.” (Caballero, supra, 55 Cal.4th at p. 268.) But we have
employed that description in the context of identifying the
category of juvenile offenders to whom the Eighth Amendment
limitations on life without parole sentences apply; for that
purpose, what matters is only whether the sentence, by its
nature, forecloses any realistic chance for a juvenile offender to
41

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
rejoin society. (See People v. Contreras (2018) 4 Cal.5th 349,
368.) We have not held that a lengthy term-of-years sentence is
necessarily equivalent to a life without parole sentence for all
purposes. Nor, more specifically, have we suggested that a set
of crimes punishable by a lengthy term-of-years sentence is
necessarily more culpable, or equivalent in culpability, to a
single crime for which the law prescribes a sentence of life
without parole. It was not irrational for the Legislature to
exclude from youth offender parole eligibility those young adults
who have committed special circumstance murder, an offense
deemed sufficiently culpable that it merits society’s most
stringent sanctions.
V.
In holding that Hardin has not demonstrated that the
exclusion of offenders who are serving sentences of life in prison
without the possibility of parole for a crime committed after the
age of 18 from youth offender parole eligibility is irrational, we
pass no judgment on the validity of any of the other exclusions
set forth in section 3051, subdivision (h). Nor do we resolve here
the constitutionality of section 3051, subdivision (h) as it might
arise in other as-applied challenges based on particular special
circumstances or the factual circumstances of individual cases.
We emphasize, finally, that the question before us
concerns only the constitutional permissibility of the lines the
Legislature has drawn. It is not for us to pass judgment on the
wisdom or desirability of its policy choices. (Chatman, supra, 4
Cal.5th at p. 297.) Recognizing this, every published Court of
Appeal decision other than the decision in this case has upheld
the life without parole exclusion against equal protection
challenge. At the same time, several opinions have taken the
42

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
additional step of calling on the Legislature to give further
careful consideration to the issue. (See, e.g., In re Murray (2021
68 Cal.App.5th 456, 464; People v. Morales, supra, 67
Cal.App.5th at p. 349; People v. Jackson, supra, 61 Cal.App.5th
at p. 202 (conc. stmt. of Liu, J.) review den. June 9, 2021,
S267812; id. at pp. 201–202 (conc. opn. of Dato, J.); People v.
Acosta, supra, 60 Cal.App.5th at p. 781; People v. Montelongo
(2020) 55 Cal.App.5th 1016, 1041a (conc. stmt. of Liu, J.) review
den. Jan. 27, 2021, S265597; id. at pp. 1035–1036 (conc. opn. of
Segal, J.); In re Jones (2019) 42 Cal.App.5th 477, 486–487 (conc.
opn. of Pollak, J.).
That so many judges across the state have taken this step
reflects the significance of this issue. Special circumstance
murder is an unquestionably grave offense, one that exacts an
unimaginable toll on the lives of victims and those the victims
leave behind. But we also know that young people — even
young people who have committed grave offenses — are capable
of significant, sometimes transformative, change over the course
of their lifetimes. To extinguish any hope of release, particularly
for an individual just past the cusp of adulthood, is a form of
retribution that exacts its own price — one borne not just by the
individuals involved, but by their families, by their
communities, and by society as a whole.8
8
In addition to pointing to neuroscience research showing
that all youthful offenders, irrespective of their offense, bear the
mitigating attributes of adolescent cognitive development and
are capable of reform, various amici curiae also caution against
legislative reliance on the special circumstance law given the
geographic, temporal, and racial disparities in its application.
Justice Evans’s dissent, too, argues that the exclusion of
43

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
We acknowledge our dissenting colleagues’ view that, in
light of these overarching concerns, the Legislature should have
made a different choice. But for us to hold that the Legislature
was constitutionally compelled to do so would require us to set
aside multiple settled rules of constitutional adjudication. As
this court has repeatedly explained, the purpose of these rules
is to ensure that courts act as courts, and allow for the
offenders sentenced to life without parole perpetuates racial
disparities, and that this bias “should inform this court’s mode
of deference.” (Dis. opn. of Evans, J., post, at p. 2.) Hardin
himself, however, has never argued that heightened scrutiny
should apply to the facially neutral section 3051, subdivision (h),
nor has he brought a constitutional claim based on the unequal
or invidious enforcement of the special circumstance law. We do
not here address how claims concerning racial disparities might
be raised or addressed in a different case, whether under the
Equal Protection Clause or under the California Racial Justice
Act of 2020 (Pen. Code, § 745).
Some amici curiae on the other side of the issue argue that,
if we were to find an equal protection violation in section 3051,
subdivision (h), the only possible remedy would be to deny youth
offender parole hearings to all young adult offenders; we could
not instead order that treatment be equalized by granting youth
offender parole hearings to young adults convicted of special
circumstance murder. These amici curiae argue that because
the current version of section 190.2 was enacted by voter
initiative (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7,
1978) § 6), extending parole eligibility to youthful offenders
sentenced to special circumstance murder would constitute an
impermissible amendment by the Legislature. In response,
Hardin contends that the penalty scheme set forth in section
190.2 was first enacted by the Legislature, so the Legislature
remains free to amend the penalties available for special
circumstance murder. We have no occasion to reach this issue,
since Hardin has not established that section 3051’s exclusion of
young adult offenders sentenced to life without parole violates
equal protection.
44

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
development of policy through the democratic process without
putting the Legislature to unwarranted all-or-nothing choices.
“While this court will not condone unconstitutional variances in
the statutory consequences of our criminal laws,” rational basis
review requires us to extend substantial respect to the
Legislature’s judgments, for “ ‘ “ ‘[o]nly by faithful adherence to
this guiding principle of judicial review of legislation is it
possible to preserve to the legislative branch its rightful
independence and its ability to function.’ ” ’ ” (Johnson, supra,
60 Cal.4th at p. 889.
Our legislative bodies may continue to consider the issue
and how to balance concerns about the severity of certain crimes
with the overarching concern that prompted enactment of the
youth offender parole hearing system and its eventual
expansion to young adult offenders — that is, the recognition of
the potential of young persons for growth and change. We are,
however, mindful that the issue in this case arises in the first
instance because the Legislature chose to expand opportunities
for early parole consideration to many categories of young adult
offenders, even though it was under no constitutional
compulsion to do so. We are also mindful that the legislative
branch is entitled to proceed incrementally, so long as it
proceeds rationally, in “walking [the] tightrope” of the political
process. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 487.) Our
task is limited to determining whether Hardin has shown that
the Legislature’s decision to expand youth offender parole
hearings to most young adult offenders, while excluding Hardin
and others similarly situated, violates equal protection under a
rational basis standard. For reasons explained above, we cannot
so conclude.
45

PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.
VI.
We reverse the judgment of the Court of Appeal.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
46

PEOPLE v. HARDIN
S277487
Dissenting Opinion by Justice Liu
In a series of statutes over the past decade, the Legislature
has established a parole eligibility process that provides young
people who have committed serious crimes “the opportunity to
obtain release when he or she has shown that he or she has been
rehabilitated and gained maturity.” (Stats. 2013, ch. 312, § 1.
Although the initial version of the parole scheme applied to
persons serving sentences for crimes committed before age 18,
the Legislature soon expanded eligibility by increasing the age
cutoff, first to 23 and then to 26. In these enactments, the
Legislature repeatedly recognized that “youthfulness both
lessens a juvenile’s moral culpability and enhances the prospect
that, as a youth matures into an adult and neurological
development occurs, these individuals can become contributing
members of society” (Stats. 2013, ch. 312, § 1), and that brain
development affecting judgment and decisionmaking “continues
beyond adolescence and into the mid-20’s” (maj. opn., ante, at
p.13 [citing legislative history]).
Parole eligibility is now available to young adult offenders
serving sentences for crimes committed before age 26, but with
exceptions. (Pen. Code, § 3051; undesignated citations are to
the Penal Code.) In 1989, at age 25, appellant Tony Hardin
killed his elderly neighbor in the course of robbing her, and he
was convicted of special-circumstance murder and sentenced to
life imprisonment without the possibility of parole (LWOP). The
parole eligibility scheme from its inception has excluded young
1

PEOPLE v. HARDIN
Liu, J., dissenting
offenders sentenced to LWOP. That exclusion has been lifted
for juvenile offenders (§ 3051, subd. (b)(4)), but it still applies to
individuals like Hardin who committed their crimes between
the ages of 18 and 25 (id., subd. (h)), even though it is
undisputed that the Legislature’s concerns about youth
offenders’ diminished culpability and capacity for rehabilitation
are not “crime-specific.” (Miller v. Alabama (2012) 567 U.S. 460,
473 (Miller); see maj. opn., ante, at p. 27.) Hardin says this
exclusion violates equal protection of the laws, and he is right.
Today’s opinion rationalizes the exclusion by imputing to
the Legislature a purpose — calibrating “culpability and the
appropriate level of punishment for certain very serious crimes”
(maj. opn., ante, at p. 26) — that is nowhere stated in the statute
or its legislative history. It then posits that special-
circumstance murder is generally distinguishable from simple
first degree murder in terms of culpability (id. at pp. 33–42
despite strong evidence to the contrary. According to the court,
nothing more is required under rational basis review.
Although I agree that rational basis review applies to
Hardin’s claim, I disagree with how the court has applied it here.
Today’s opinion ignores the considerable variation and nuance
in our case law applying rational basis review and undertakes
the sort of lax analysis that has become typical “ ‘[i]n areas of
social and economic policy.’ ” (Warden v. State Bar (1999) 21
Cal.4th 628, 644 (Warden).) But the issue in this case is a far
cry from, say, whether the State Bar may exempt retired judges
from continuing education requirements applicable to other
licensed attorneys. (Id. at p. 633.) Hardin, who is Black, is
challenging a law that spells the difference between dying in
prison and having a chance to earn freedom. The law targets a
class of offenders who are overwhelmingly Black or Hispanic,
2

PEOPLE v. HARDIN
Liu, J., dissenting
and whose crimes — no less than the crimes of other youth
offenders — reflect the “transient rashness, proclivity for risk,
and inability to assess consequences” that are characteristic of
young minds still undergoing neurological development.
(Miller, supra, 567 U.S. at p. 472.) In light of today’s decision,
nearly 3,000 inmates continue to be denied any chance to
demonstrate — as no doubt many could — that as mature adults
they are more than the worst thing they ever did in their youth.
We have applied rational basis review more rigorously in
cases with lower stakes. Rational basis review “require[s] the
court to conduct ‘a serious and genuine judicial inquiry into the
correspondence between the classification and the legislative
goals.’ ” (Newland v. Board of Governors (1977) 19 Cal.3d 705,
711 (Newland).) Here, such inquiry reveals that the exclusion
of young offenders convicted of special-circumstance murder is
irrational when measured against the Legislature’s stated
purpose for establishing and expanding youth offender parole
eligibility. And even if we were to impute a purpose of excluding
young offenders who have committed the most serious crimes,
the exclusion of those convicted of special-circumstance murder
does not withstand scrutiny. That is because, as the Court of
Appeal found, they are not meaningfully distinguishable from
young offenders convicted of simple first degree murder, a group
that is parole eligible under the statute.
Today’s opinion concludes by echoing judges throughout
the state who have urged the Legislature to reconsider the
statute. (Maj. opn., ante, at pp. 42–43.) One can hope the
Legislature will take up the invitation, but that is no salve for
what should have happened here. It is indeed imperative that
“courts act as courts” (maj. opn., ante, at p. 45), and in our
system of government, courts are the ultimate guarantor of
3

PEOPLE v. HARDIN
Liu, J., dissenting
constitutional rights against arbitrariness or excesses of
majoritarian rule. Although courts owe deference to the
democratic process, deference is not abdication. Upon a serious
and genuine judicial inquiry, it is evident that the exclusion of
persons convicted of special-circumstance murder from youth
offender parole eligibility does not meet the basic test of
rationality. I respectfully dissent.
I.
While I agree that rational basis review is the appropriate
equal protection standard in this case, today’s opinion largely
ignores the way this standard has been articulated and applied
in our case law. One feature that distinguishes our equal
protection doctrine from its federal counterpart is that the
standards of review under our doctrine are limited to two:
rational basis review and strict scrutiny. (See In re Marriage
Cases (2008) 43 Cal.4th 757, 832.) Unlike the federal courts, we
have declined to adopt intermediate scrutiny as a third standard
of review. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584,
595–603 (conc. opn. of Mosk, J.); id. at pp. 607–610 (conc. opn.
of Bird, C. J.).) This means that rational basis review, in our
doctrine, covers a wide range of cases and must be applied with
nuance and sensitivity if we are to avoid the “rigidity of [a] two-
tiered framework” that “applies either a standard that is
virtually always met [rational basis] or one that is almost never
satisfied [strict scrutiny].” (Id. at p. 598 (conc. opn. of Mosk, J.).
In the pages that follow, I discuss the rational basis standard in
depth. I regret the length of this discussion, but patient readers
will understand why careful attention to our case law is
essential to proper resolution of Hardin’s equal protection claim.
4

PEOPLE v. HARDIN
Liu, J., dissenting
A.
In Brown v. Merlo (1973) 8 Cal.3d 855 (Brown), we applied
rational basis review and struck down an automobile guest
statute that “deprive[d] an injured automobile guest of any
recovery for the careless driving of his host unless the injury
results from the driver’s willful misconduct or intoxication.” (Id.
at pp. 858–859, citing Veh. Code, former § 17158.) Our opinion
examined the two rationales traditionally offered for the
statute — protecting hospitality and preventing collusive
lawsuits — and rejected both with extensive analysis. As to
protecting hospitality, the court found this rationale
underinclusive in that it “provides no explanation for the
statute’s differential treatment of automobile guests as
distinguished from other guests, or indeed, all other recipients
of hospitality.” (Brown, at p. 864.) Further, we said that any
interest in protecting drivers from claims by “ungrateful” guests
had been undermined by the advent of widespread liability
insurance. (Id. at p. 868; see id. at p. 869 [“a classification which
once was rational because of a given set of circumstances may
lose its rationality if the relevant factual premise is totally
altered”].) As to preventing collusive lawsuits, the court
explained that “it is unreasonable to eliminate causes of action
of an entire class of persons simply because some undefined
portion of the designated class may file fraudulent lawsuits.”
(Id. at p. 875.) “[B]y broadly prohibiting all automobile guests
from instituting causes of action for negligence because a small
segment of that class may file collusive suits, the guest statute
presents a classic case of an impermissibly overinclusive
classification scheme . . . .” (Id. at p. 876.
The court in Brown did not rationalize the statute’s
underinclusivity by saying that a legislature “may take one step
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PEOPLE v. HARDIN
Liu, J., dissenting
at a time, addressing itself to the phase of the problem which
seems most acute to the legislative mind.” (Williamson v. Lee
Optical of Oklahoma, Inc. (1955) 348 U.S. 483, 489 (Lee
Optical).) Nor did Brown rationalize the statute’s
overinclusivity by saying that a classification does not fail
rational basis review “simply because [it] ‘is not made with
mathematical nicety or because in practice it results in some
inequality,’ ” or that practical problems of government “ ‘may
justify, if they do not require, rough accommodations — illogical,
it may be, and unscientific.’ ” (Dandridge v. Williams (1970) 397
U.S. 471, 485.) In fact, Brown began its discussion of the
rational basis standard by observing that a classification “ ‘must
rest upon some ground of difference having a fair and
substantial relation to the object of the legislation,’ ” (Brown,
supra, 8 Cal.3d at p. 681, italics omitted, quoting Reed v. Reed
(1971) 404 U.S. 71, 76 (Reed).) Although Reed presaged the
development of intermediate scrutiny under federal law (see
Craig v. Boren (1976) 429 U.S. 190, 197–199, 204; Frontiero v.
Richardson (1973) 411 U.S. 677, 682–684, 690–691 (plur. opn.)),
Brown assimilated it into our explication of rational basis
review.
The next year, this court in D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1 (D’Amico) invalidated statutes
that barred persons with osteopathic training (holders of O.D.
degrees) from obtaining a physician’s license available to
persons with allopathic training (holders of M.D. degrees). (Id.
at p. 23.) We began by explaining that rational basis review, not
strict scrutiny, applies to occupational licensing laws. (Id. at
pp. 16–18.) We then noted the Attorney General’s admissions
“(1) that osteopathy, like allopathy, is a complete school of
medicine and surgery whose practitioners successfully engage
6

PEOPLE v. HARDIN
Liu, J., dissenting
in the full range of activities commonly thought of as
constituting medical science . . . , and (2) that there exists in the
state examining and licensing boards the technical capacity to
screen osteopathic applicants for licensure, as allopathic
applicants are now screened, so as to insure that the people of
the state will be protected from incompetent and unqualified
practitioners.” (Id. at p. 23.) “This showing,” we said,
“demonstrates beyond peradventure of a doubt that there exists
no rational relationship between the protection of the public
health and the exclusion from licensure of all medical
practitioners who . . . hold D.O. rather than M.D. degrees.”
(Ibid.) We further said that in light of the admissions above, the
same result would obtain even if “evidence might show
differences of emphasis and quality between osteopathic
training and allopathic training.” (Id. at p. 24.) We did not posit
that the Legislature could proceed “one step at a time” in
protecting public health (Lee Optical, supra, 348 U.S. at p. 489
or that the additional cost of screening osteopathic applicants
for licensure could justify the exclusion (cf. Reed, supra, 404 U.S.
at p. 76 [rejecting administrative efficiency as a valid rationale
for an otherwise “arbitrary legislative choice”]).
Three years later, in Newland, supra, 19 Cal.3d 705, we
applied rational basis review and invalidated a statute that
barred persons with a misdemeanor conviction, but not persons
with a felony conviction, from eligibility for a teaching
credential. (Id. at p. 707.) The differential treatment turned on
the fact that one of the statutory eligibility requirements was a
certificate of rehabilitation, which was available to felons but
not misdemeanants. (Ibid.) We speculated that the certificate
requirement “may simply be a case of legislative oversight — a
failure to realize that this requirement would block any relief to
7

PEOPLE v. HARDIN
Liu, J., dissenting
a misdemeanant.” (Id. at p. 712.) But we did not rest our
reasoning on that ground. Instead, we said “our inquiry must
begin with an identification of the purpose of [the statute] so
that we may determine whether the statutory classification . . .
rationally relates to that purpose.” (Id. at p. 711.) We
determined that the credentialing statute’s purpose was “to
protect the students, faculty and others who might be harmed
by the employment of an unfit teacher.” (Id. at pp. 711–712.
We then explained: “This statutory discrimination against
misdemeanants can claim no rational relationship to the
protective purpose of [the statute]. . . . The Legislature could
not possibly or sensibly have concluded that misdemeanants, as
opposed to felons, constitute a class of particularly incorrigible
offenders who are beyond hope of rehabilitation.” (Id. at p. 712.
In applying rational basis review, Newland hewed to the
statute’s clear purpose and evaluated the classification against
that purpose. We did not posit any competing purposes, though
it would have been easy to do so: The state could have had an
interest in minimizing the costs associated with determining
which persons with criminal history have been rehabilitated
and are thus fit to be a teacher. Whereas an existing
mechanism (a certificate of rehabilitation) simplified that
determination for persons with a felony conviction, no such
mechanism existed for persons with a misdemeanor conviction,
a far larger group. Educational institutions, if they wished to
screen such applicants, would have needed to incur the burden
of conducting their own fitness hearings, as Newland
acknowledged. (Newland, supra, 19 Cal.3d at p. 714, fn. 11.
Had we taken the view that “ ‘[i]f a plausible basis exists for the
disparity, courts may not second-guess its “ ‘wisdom, fairness, or
logic’ ” ’ ” (maj. opn., ante, at p. 23), Newland would have come
8

PEOPLE v. HARDIN
Liu, J., dissenting
out the other way. But we did not deploy such reasoning. After
canvassing various formulations of the rational basis standard,
we said that “[a]ll of the formulas require the court to conduct ‘a
serious and genuine judicial inquiry into the correspondence
between the classification and the legislative goals’ ” and that
such inquiry demonstrated the unconstitutionality of the
classification at issue. (Newland, at p. 711, italics added.
The following year, we applied the inquiry as stated in
Newland to invalidate a Vehicle Code provision barring
passengers who own the car in which they were injured from
suing the negligent driver: “[H]aving conducted a ‘serious and
genuine judicial inquiry into the correspondence between the
[statutory] classification and the legislative goals’ [citation to
Newland], we are convinced that the disparate treatment
accorded by the statute is not rationally related to a realistically
conceivable legislative purpose.” (Cooper v. Bray (1978) 21
Cal.3d 841, 855 (Cooper).) From “the origin and legislative
history of the provision,” we found it “rather clear” that “the
provision was not intended to impose special burdens on owner-
passengers but rather proposed to place such owner-passengers
on an equal plane with most other injured automobile
passengers” at a time when the Vehicle Code also barred
recovery by nonpaying automobile guests. (Id. at p. 848.
Because the court in Brown had since invalidated the
automobile guest statute, the bar on recovery by owner-
passengers no longer “ ‘further[ed] the legislative purpose of
according owner-passengers the same treatment as such guests,
but rather defeat[ed] that purpose by singling out owner-
passengers for differential treatment from all other automobile
accident victims.’ ” (Id. at p. 851.
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PEOPLE v. HARDIN
Liu, J., dissenting
In evaluating the classification against the statute’s
actual purpose, we declined to impute other purposes to the
Legislature, such as an “interest in promoting automobile safety
by encouraging the careful selection and supervision of
permissive drivers by car owners.” (Cooper, supra, 21 Cal.3d at
p. 851.) We found the statute overinclusive with regard to such
an interest because it “bar[red] recovery by all owner-
passengers, including the most careful owners who selected the
most cautious drivers and who scrupulously supervised the
driving.” (Id. at p. 852.) We also explained that if the
Legislature had intended “to encourage care in the selection and
supervision of drivers,” then the statutory exceptions allowing
recovery by owner-passengers for injury caused by a driver’s
intoxication or willful misconduct “obviously make[] no sense.”
(Ibid.) We were unmoved by the dissent’s argument that “the
Legislature, pursuing the clearly legitimate goal of achieving a
fair distribution of liability for damage caused by unreasonable
conduct,” could have reasonably “weighed the conflicting
interests of driver and owner and concluded that the driver
should be protected, given the owner’s selection of, and
supervision over, the driver,” even if this “reasoning was unwise,
or . . . the purpose of the Legislature could have been better
furthered by another means.” (Id. at pp. 857–858 (dis. opn. of
Richardson, J.).
Our approach in Cooper, Newland, and earlier cases was
consonant with a contemporaneous high court case, United
States Department of Agriculture v. Moreno (1973) 413 U.S. 528
(Moreno), which invalidated a statute excluding households
“containing an individual who is unrelated to any other member
of the household” from food stamp eligibility. (Id. at p. 529.
Applying rational basis review, the high court quoted the Food
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PEOPLE v. HARDIN
Liu, J., dissenting
Stamp Act’s stated purpose “ ‘[t]o alleviate . . . hunger and
malnutrition’ ” among “ ‘low-income households’ ” and
concluded that “[t]he challenged statutory classification . . . is
clearly irrelevant to the stated purposes of the Act.” (Id. at
pp. 533–534.) The court then considered whether “Congress
might rationally” have had an “interest in minimizing fraud in
the administration of the food stamp program.” (Id. at p. 535.
It rejected this rationale on the grounds that the statute already
contained other antifraud provisions (id. at pp. 536–537) and
that the exclusion of unrelated households “in practical
operation” did not target “persons who are ‘likely to abuse the
program’ ” (id. at p. 538). The court did not posit that Congress
could have desired a belt-and-suspenders approach to
combating fraud. Nor did it accept the generalization that
limiting food stamps to related households “provides a
guarantee . . . that the household exists for some purpose other
than to collect federal food stamps” (id. at p. 546 (dis. opn. of
Rehnquist, J.), citing evidence to the contrary (id. at pp. 537–
538 (maj. opn.)). Like Cooper, Moreno evaluated the
classification against the stated legislative purpose and declined
to impute other purposes, and the high court did not defer to
plausible yet unsubstantiated generalizations, even while
acknowledging that rational basis review “does not require that
every classification be drawn with precise ‘ “mathematical
nicety.” ’ ” (Moreno, at p. 538.
We continued to apply this mode of analysis in Hays v.
Wood (1979) 25 Cal.3d 772 (Hays), where we invalidated a voter-
enacted disclosure law that required public officials who were
lawyers or brokers to disclose any source of payments equal to
or greater than $1,000, but which required filers with other
business interests to disclose only sources of payments equal to
11

PEOPLE v. HARDIN
Liu, J., dissenting
or greater than $10,000. (Id. at p. 795.) We again applied
Newland’s formulation of the rational basis inquiry (Hays, at
p. 787) and focused on the legislative purpose stated in “the Act
itself,” i.e., “insuring disclosure of income which may be
materially affected by the official actions of the filing public
official” (id. at p. 788). We recognized that the potential for
conflict of interest is a function of an official’s “actual profits”
derived from business dealings (ibid.) and that providers of
professional services have “substantially greater” profit margins
than business entities that make or sell goods (id. at p. 789).
But this distinction did not justify “special treatment” of lawyers
and brokers as compared to other professionals with comparable
profit margins. (Ibid.) We said this “ ‘underinclusiv[ity]’ ” could
not be justified on the ground that “a legislative body . . . need
not attack all phases [of a problem] at once.” (Id. at p. 790.
“[W]hen the legislative body proposes to address an area of
concern in less than comprehensive fashion by ‘striking the evil
where it is felt most’ [citation], its decision as to where to ‘strike’
must have a rational basis in light of the legislative objectives.”
(Id. at p. 791.
We then proceeded to reject four possible bases for
distinguishing lawyers from “all others similarly situated in
terms of profit margin.” (Hays, supra, 25 Cal.3d at p. 792.) It
was argued that lawyers are more likely to have potential
conflicts because they often represent private interests in
dealings with government; we said other professionals may have
a higher volume of clients, making potential conflicts more
frequent. (Id. at pp. 792–793.) It was argued that “the unique
nature” of the lawyer-client relationship, including “habits of
loyalty,” make lawyers more prone to conflict; we said the
professional relationships of physicians and psychotherapists
12

PEOPLE v. HARDIN
Liu, J., dissenting
are at least as “personal and intense.” (Id. at p. 793.) It was
argued that “the customary practice of many lawyers of
accepting retainers” can serve as “a unique device for
channeling money in payment for public favors”; we said a
“disguised payment for political favor” can occur “in any number
of ways.” (Id. at pp.793, 794.) And it was argued that the public
may perceive a lawyer, “ ‘more so than . . . persons in other
professions,’ ” as promoting client interests when serving as a
public official; we said this was a “curious assertion” that
provided no basis for “significantly different standards of
disclosure for members of different professions.” (Id. at pp. 794,
795.) We thus rejected a series of unsubstantiated assertions en
route to holding that the classification “fails to exhibit any fair
and reasonable relationship to the stated legislative objectives.”
(Id. at p. 795.
Another case in this line was United States Steel Corp. v.
Public Utilities Commission (1981) 29 Cal.3d 603 (U.S. Steel),
which involved a challenge to a Public Utilities Commission
order exempting commodities carried by private vessels (as
opposed to common carriers) from intrastate minimum shipping
rates. The effect of this order was to make foreign steel cheaper
to transport compared to domestic steel. (Id. at p. 607.) We
annulled the order on the ground that the Commission had
adopted it without having satisfied its statutory duty to “assess
the economic impact of its action,” including whether the
exemption would drive shippers out of business and cost jobs.
(Id. at p. 610.) “To guide the commission in further proceedings”
(ibid.), we went on to discuss the requirements of equal
protection in this context. We again quoted Newland’s
formulation of the rational basis inquiry and observed that
“[t]he aim of minimum rate regulation is to preclude destructive
13

PEOPLE v. HARDIN
Liu, J., dissenting
rate practices and to provide for movement at the lowest rates
compatible with the maintenance of adequate transportation
service. [Citations.] Rates below the minimum do not serve that
aim absent some showing of a difference in cost in hauling
private-vessel steel as compared with domestic steel, or of a
difference regarding destructive rate practices. There is no
showing here.” (U.S. Steel, at p. 612.) A further argument for
the exemption was that the “difficulty in determining whether
imported steel has arrived via common carrier or private vessel”
would burden “truckers in determining the appropriate rate as
well as on the commission in enforcing minimum rates.” (Id. at
p. 613.) We said this concern was plausible, but “the
commission’s finding as to ‘difficulty’ seems inadequately
supported by the record,” and the equal protection issue could
not be settled “[w]ithout a more complete record.” (Id. at p. 614.
In sum, we again declined to accept plausible yet
unsubstantiated assertions under rational basis review.
B.
A few years after U.S. Steel, we decided a series of cases
rejecting equal protection challenges to various provisions of the
Medical Injury Compensation Reform Act of 1975 (MICRA).
(See American Bank & Trust Co. v. Community Hospital (1984
36 Cal.3d 359, 370–374 (American Bank); Barme v. Wood (1984
37 Cal.3d 174, 181–182 (Barme); Roa v. Lodi Medical Group,
Inc. (1985) 37 Cal.3d 920, 930–931 (Roa); Fein v. Permanente
Medical Group (1985) 38 Cal.3d 137, 161–164 (Fein).) Our
language in those cases featured more deferential formulations
of rational basis review. (See, e.g., American Bank, at p. 371
[“the equal protection clause does not prohibit a Legislature
from implementing a reform measure ‘one step at a time’
[citation], or prevent it ‘from striking the evil where it is felt
14

PEOPLE v. HARDIN
Liu, J., dissenting
most’ ”]; id. at p. 374 [“the constitutionality of a measure under
the equal protection clause does not depend on a court’s
assessment of the empirical success or failure of the measure’s
provisions”].) But we observed that “our application of equal
protection principles in [the MICRA cases] is not inconsistent
with the principles enunciated in [Brown and Cooper] or like
cases. As Cooper explains, . . . what is required is that the court
‘conduct “a serious and genuine judicial inquiry into the
correspondence between the classification and the legislative
goals.” ’ (21 Cal.3d at p. 848 [quoting Newland v. Board of
Governors (1977) 19 Cal.3d 705, 711, italics added in Cooper].
We have conducted such an inquiry in all of these cases . . . .”
(Fein, at p. 163.
Fein is illustrative. The plaintiff argued that MICRA’s
$250,000 cap on noneconomic damages violates equal protection
because it “discriminates between medical malpractice victims
and other tort victims” and because it “discriminates within the
class of medical malpractice victims, denying a ‘complete’
recovery of damages only to those malpractice plaintiffs with
noneconomic damages exceeding $250,000.” (Fein, supra, 38
Cal.3d at pp. 161–162.) As to the first contention, we cited our
earlier cases that had extensively examined the legislative
history of MICRA showing that the Legislature, with ample
basis, had targeted medical malpractice cases for reform
because of “an insurance ‘crisis’ in that particular area.” (Fein,
at p. 162, citing American Bank, Barme, and Roa.) As to the
second contention, we said “the Legislature clearly had a
reasonable basis” for seeking cost savings “only by limiting the
recovery of noneconomic damage.” (Fein, at p. 162.) While
acknowledging other plausible means of distributing cost
savings across malpractice plaintiffs, we explained that the size
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PEOPLE v. HARDIN
Liu, J., dissenting
and unpredictability of noneconomic damages awards rationally
justified the Legislature’s approach. (Id. at pp. 162–163.) We
noted that “the unpredictability of the size of large noneconomic
damage awards” was “[o]ne of the problems identified in the
legislative hearings” (id. at p. 163), and we cited legal
scholarship and an American Bar Association report to show
that the issue was one on which “reasonable persons can
certainly disagree” (id. at p. 160; see id. at pp. 159–160 &
fns. 16–17). Fein did not rely on imputed legislative purposes or
unsubstantiated assertions to uphold the challenged provision.
A subsequent case, Warden, supra, 21 Cal.4th 628, marks
perhaps our most deferential application of rational basis
review. We rejected an equal protection challenge to an
exemption for retired judges, elected officials, and law professors
from continuing education requirements that are generally
applicable to practicing attorneys. (Id. at p. 634.) We said “it
would not have been irrational to conclude that the attorneys in
each of the exempted categories, as a general matter, are less
likely than other attorneys to represent clients on a full-time
basis, thus rendering the need for a continuing education
requirement less vital,” and that “in view of their particular
professional roles and experience, the attorneys in each of the
exempt classes (again, as a general matter) are less likely than
lawyers in general to need continuing education courses in order
to be familiar with recent legal developments or to remain
competent practitioners.” (Id. at pp. 645–646.
The Court of Appeal had observed that there was “ ‘no
support’ in the legislative history . . . to indicate that these were
the actual explanations of the rationale or motivation for the
adoption of the exemptions.” (Warden, supra, 21 Cal.4th at
pp. 649–650.) Citing federal case law, we said that “when there
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PEOPLE v. HARDIN
Liu, J., dissenting
is a reasonably conceivable justification for a classification, ‘[i]t
is . . . “constitutionally irrelevant whether [the] reasoning in fact
underlay the legislative decision.” ’ ” (Id. at p. 650, quoting
United States Railroad Retirement Board. v. Fritz (1980) 449
U.S. 166, 179.) We also said, citing federal case law, that “ ‘a
legislative choice . . . may be based on rational speculation
unsupported by evidence or empirical data’ ” (Warden, at p. 650,
italics added, quoting Federal Communications Commission v.
Beach Communications, Inc. (1993) 508 U.S. 307, 315 (Beach
Communications) and that “ ‘reform may take one step at a
time’ ” (Warden, at p. 645, quoting Lee Optical, supra, 348 U.S.
at p. 489).
As two dissenting Justices observed, Warden relied
heavily on federal authority in elaborating a highly deferential
rational basis test without grappling with the fact that whereas
it is one of three levels of scrutiny in federal equal protection
doctrine, our own case law “has not slavishly followed decisions
of the federal high court” and has never adopted intermediate
scrutiny. (Warden, supra, 21 Cal.4th at pp. 652–653 (dis. opn.
of Kennard, J.); id. at p. 661 (dis. opn. of Brown, J.) [“Our state
equal protection jurisprudence grew out of a recognition of the
inadequacy of federal standards.”].) Justice Brown noted that
our decision in Hays had “expressly rejected” Lee Optical in
saying that “ ‘the legislative body, when it chooses to address a
particular area of concern in less than comprehensive fashion by
merely “striking the evil where it is felt most” [citation] may not
do so wholly at its whim.’ [Citation.] Rather ‘its decision as to
where to “strike” must have a rational basis in light of the
legislative objectives.’ ” (Warden, at p. 664 (dis. opn. of Brown,
J.), quoting Hays, supra, 25 Cal.3d at pp. 790, 791.) “[O]ur state
Constitution insists on greater precision . . . . Rather than
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PEOPLE v. HARDIN
Liu, J., dissenting
merely ‘rubberstamping’ the legislative categories at issue here,
we should be engaging in ‘ “a serious and genuine judicial
inquiry into the correspondence between the classification and
the legislative goals” ’ (Newland v. Board of Governors, supra,
19 Cal.3d at p. 711), and, more particularly, we should be asking
whether the legislative classifications substantially advance the
legislative purposes without being ‘grossly overinclusive’ or
‘underinclusive.’ (Brown v. Merlo, supra, 8 Cal.3d at p. 877 &
fn. 17.)” (Warden, at pp. 664–665 (dis. opn. of Brown, J.).
Warden made clear that the standards it elaborated apply
“ ‘[i]n areas of social and economic policy’ ” (Warden, supra, 21
Cal.4th at p. 644, quoting Beach Communications, supra, 508
U.S. at p. 313), and issues such as continuing legal education
requirements or the definition of a “cable system” (Beach
Communications, at pp. 310–311) are paradigmatic examples.
Warden’s deferential language has seeped into our case law
addressing equal protection challenges to criminal statutes,
with no examination of how our doctrine has evolved differently
from its federal counterpart. (See People v. Turnage (2012) 55
Cal.4th 62, 75, 79 (Turnage); People v. Johnson (2015) 60 Cal.4th
871, 887 (Johnson); People v. Chatman (2018) 4 Cal.5th 277, 289
(Chatman).) But even in those cases, we have not actually
employed the full extent of deference that Warden’s language
contemplates.
In Turnage, we upheld a statute allowing felony treatment
of placing a false bomb without proof of causing sustained fear,
even though a separate statute requires proof of sustained fear
for felony treatment of placing a false weapon of mass
destruction (WMD). (Turnage, supra, 55 Cal.4th at pp. 67–68.
We said the differential treatment was rational because “[i]t is
conceivable from a legislative perspective” that false WMDs,
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Liu, J., dissenting
unlike false bombs, “would not necessarily be recognized or
cause fear, even where it is detected and was intended to do so.”
(Id. at p. 68.) But this rationale was not merely “conceivable”;
the history of the false WMD statute implied that the
Legislature had actually considered it. Extensively citing a
Senate committee report, we observed that “[t]he new false
WMD statute was said to be inspired by the false bomb statute”
(id. at p. 79) and that “in acknowledging the similarity between
the ‘wobbler’ provisions of [the false WMD statute] and [the false
bomb statute], the Legislature implied that it was aware of the
substance of the latter statute, that proof of sustained fear was
not required in felony false bomb cases, and that both felonies
nonetheless involved the same level of ‘violent’ fear. . . . In other
words, a showing of sustained fear for felonies under the false
WMD statute was necessary to reflect the same level of violent
fear that the Legislature assumed was present in false bomb
cases . . . .” (Id. at p. 80.) “[T]he Senate Report implicitly shows
a rational connection between the disparate role of sustained
fear in the false bomb and false WMD statutes, and the purpose
such disparity was apparently meant to serve.” (Id. at pp. 79–
80.
In Johnson, we upheld a statutory scheme allowing
discretionary sex offender registration for persons convicted of
unlawful sexual intercourse with a minor, while imposing
mandatory registration for persons convicted of crimes involving
other sexual acts with a minor, including nonforcible oral
copulation. (Johnson, supra, 60 Cal.4th at pp. 874–875.) We
said that “intercourse is unique in its potential to result in
pregnancy and parenthood. Given that unique potential,
legislative concerns regarding teen pregnancy and the support
of children conceived as a result of unlawful sexual intercourse
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PEOPLE v. HARDIN
Liu, J., dissenting
provide more than just a plausible basis for” the disparate
treatment. (Id. at p. 875.) This rationale was not hypothetical.
We examined the history of the statute against unlawful sexual
intercourse and observed that the Legislature, by separating
this offense from the general rape statute, “sought to eliminate
. . . the social stigma associated with the rape label so that
offenders could more readily obtain employment and support
children conceived as a result of such intercourse. [Citations to
legislative history.] This history confirms that the potential for
pregnancy and parenthood has, in fact, influenced legislative
decisionmaking regarding unlawful intercourse with minors.”
(Id. at p. 885; see ibid. [citing subsequent legislative concerns
about teen pregnancy and birth rates resulting from unlawful
sexual activity between adult males and teenage girls, and
implications for public welfare and health care expenses].) We
said this actual legislative concern provided a rational basis for
allowing trial courts not to order registration where it “might
cause economic or other hardship to a child born to the minor
victim and the adult offender,” while requiring registration for
persons convicted of other unlawful sexual activity with minors.
(Id. at p. 886.
Similarly, in Chatman, we upheld a statute barring
former probationers but not former prisoners from eligibility for
a certificate of rehabilitation in certain circumstances.
(Chatman, supra, 4 Cal.5th at pp. 282–283.) Our analysis
focused on the state’s interest in avoiding the costs associated
with extending certificates of rehabilitation to former
probationers, a group much larger than former prisoners. (Id.
at pp. 291–292.) Although we said the rationale for a legislative
classification need not have been articulated by lawmakers and
does not need to be empirically substantiated (id. at p. 289), in
20

PEOPLE v. HARDIN
Liu, J., dissenting
fact we observed that legislative history “provide[s] at least
some indication that this cost concern figured in legislative
deliberations” (id. at p. 292), and we went on to cite “data” that
substantiated the cost concern (id. at p. 293). In other words,
Chatman addressed what appeared to be the actual rationale for
the classification and found it had some empirical support. (See
also People v. Wilkinson (2004) 33 Cal.4th 821, 834, 839
[legislative history showed rationale for statute allowing
potentially harsher treatment of battery on a custodial officer
without injury than such battery with injury].
C.
In sum, this court’s articulation and application of rational
basis review has not marched in lock step with federal authority.
Our approach is deferential but far from toothless; our case law,
though not entirely uniform, reveals several recurring themes:
In conducting “ ‘a serious and genuine judicial inquiry into the
correspondence between the classification and the legislative
goals’ ” (Newland, supra, 19 Cal.3d at p. 711), we have focused
on actual legislative purposes instead of imputing hypothetical
ones, and we have looked for empirical support instead of relying
on conjecture or unsubstantiated assertions. Although we “do
not require absolute precision in the designation of
classifications,” we also “do not tolerate classifications which are
so grossly overinclusive as to defy notions of fairness or
reasonableness.” (Brown, supra, 8 Cal.3d at p. 877.) And while
the Legislature may proceed incrementally, we have said it
must do so rationally in light of the legislative objectives and
“not . . . wholly at its whim.” (Hays, supra, 25 Cal.3d at p. 790.
Today’s opinion ignores this case law and claims that I am
offering “an argument for reconsidering rational basis review.”
21

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Liu, J., dissenting
(Maj. opn., ante, at p. 23, fn. 3.) To the contrary, it is the court’s
refusal to consider, not reconsider, our precedent that is the
problem here. The principles above have sturdy foundations in
what our cases say and, perhaps more importantly, in what they
actually do. Although Warden took a more deferential approach,
today’s opinion does not cite Warden for an obvious reason: We
are not dealing with a matter at all similar to who is or isn’t
subject to continuing legal education requirements. The case
before us concerns which young offenders will be condemned to
die in prison and which will have a meaningful chance to earn
release. Instead of measuring the challenged classification
against the Legislature’s stated purpose in enacting the youth
offender parole statute, today’s opinion upholds the exclusion of
young offenders convicted of special circumstance murder by
imputing a different purpose that is nowhere mentioned in the
statute’s text or legislative history, and that even on its own
terms does not provide a rational basis for treating the excluded
group differently from young offenders convicted of first degree
murder. The court’s reasoning cannot sustain the result here.
II.
The provision at issue — section 3051, subdivision (h) —
is part of the youth offender parole statute enacted by the
Legislature in 2013. I begin with some background on the
statute and then explain its constitutional infirmity.
A.
The Legislature made clear the purpose of section 3051 in
the statute itself. Its opening provision, as originally enacted,
says in full: “The Legislature recognizes that youthfulness both
lessens a juvenile’s moral culpability and enhances the prospect
that, as a youth matures into an adult and neurological
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PEOPLE v. HARDIN
Liu, J., dissenting
development occurs, these individuals can become contributing
members of society. The purpose of this act is to establish a
parole eligibility mechanism that provides a person serving a
sentence for crimes that he or she committed as a juvenile the
opportunity to obtain release when he or she has shown that he
or she has been rehabilitated and gained maturity, in
accordance with the decision of the California Supreme Court in
People v. Caballero (2012) 55 Cal.4th 262 and the decisions of
the United States Supreme Court in Graham v. Florida (2010
560 U.S. 48 [(Graham)], and Miller v. Alabama (2012) [567 U.S.
460]. Nothing in this act is intended to undermine the
California Supreme Court’s holdings in In re Shaputis (2011) 53
Cal.4th 192, In re Lawrence (2008) 44 Cal.4th 1181, and
subsequent cases. It is the intent of the Legislature to create a
process by which growth and maturity of youthful offenders can
be assessed and a meaningful opportunity for release
established.” (Stats. 2013, ch. 312, § 1 [Sen. Bill No. 260].) The
only references to culpability in the statute are the Legislature’s
recognition of the diminished culpability of youth (ibid.) and the
mandate that any psychological evaluations or risk assessments
used by the parole board “shall take into consideration the
diminished culpability of youth as compared to that of adults”
(§ 3051, subd. (f)(1)).
Subsequently, in light of more “[r]ecent scientific evidence
on adolescent and young adult development and neuroscience
show[ing] that certain areas of the brain — particularly those
affecting judgment and decision-making — do not fully develop
until the early- to mid-20s” (Sen. Com. on Public Safety, Rep. on
Sen. Bill No. 261 (2015–2016 Reg. Sess.) Apr. 28, 2015, p. 3), the
Legislature amended the parole eligibility scheme — first, to
include youth offenders who committed crimes before the age of
23

PEOPLE v. HARDIN
Liu, J., dissenting
23 (Stat. 2015, ch. 471, § 1, Sen. Bill No. 261 (2015–2016 Reg.
Sess.) § 1), and then, to include offenders who committed crimes
before age 26 (Stat. 2017, ch. 675, § 1, Assem. Bill No. 1308
(2017–2018 Reg. Sess.) § 1). A committee report on the latter
bill states: “The rationale, as expressed by the author and
supporters of this bill, is that research shows that cognitive
brain development continues into the early 20s or later. The
parts of the brain that are still developing during this process
affect judgment and decision-making, and are highly relevant to
criminal behavior and culpability. (See Johnson, et al.,
Adolescent Maturity and the Brain: The Promise and Pitfalls of
Neuroscience Research in Adolescent Health Policy, Journal of
Adolescent Health (Sept. 2009); National Institute of Mental
Health, The Teen Brain: Still Under Construction (2011).) ‘The
development and maturation of the prefrontal cortex occurs
primarily during adolescence and is fully accomplished at the
age of 25 years. The development of the prefrontal cortex is very
important for complex behavioral performance, as this region of
the brain helps accomplish executive brain functions.’ [Citation
to Arain et al., Maturation of the Adolescent Brain (2013) 9
Neuropsychiatric Disease & Treatment 449.]” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 1308
(2017–2018 Reg. Sess.) Sept. 4, 2017, pp. 4–5.
As today’s opinion acknowledges, “No one doubts that the
Legislature’s primary purpose in expanding section 3051 to
include young adult offenders was to give these young persons
the opportunity to obtain release based on demonstrated growth
and rehabilitation.” (Maj. opn., ante, at p. 26.) “The Legislature
enacted section 3051 to bring California juvenile sentencing law
into line with Graham, Miller, and Caballero.” (Id. at p. 11.
Relying “not only on common sense — on what ‘any parent
24

PEOPLE v. HARDIN
Liu, J., dissenting
knows’ — but on science and social science,” those cases explain
that juveniles have an underdeveloped sense of responsibility,
vulnerability to negative influences and outside pressures, lack
of control over their own environment, and transitory traits that
are not fixed but developing — all of which mitigate their
culpability and point to their capacity for rehabilitation. (Miller,
supra, 567 U.S. at p. 471.) These attributes of youth also
diminish the traditional penological justifications of retribution,
deterrence, and incapacitation. (See id. at p. 472; Graham,
supra, 560 U.S. at pp. 71–73.) As indicated in the legislative
history, the Legislature had these concerns not only about
juveniles but also about young adults under the age of 26.
Further, there is no dispute that the scientific evidence
cited by the Legislature applies to young offenders across the
board. Nothing about the “distinctive (and transitory) mental
traits and environmental vulnerabilities” of youth offenders “is
crime-specific” (Miller, supra, 567 U.S. at p. 473), and the
Legislature nowhere suggested that young offenders who
commit certain crimes, including crimes punishable by LWOP,
are immune to those vulnerabilities or incapable of reform.
There is also no dispute that providing young offenders with a
meaningful opportunity for release in light of their capacity for
change is the only purpose stated by the Legislature in creating
and expanding the parole scheme. No other purpose is stated in
the statute or legislative history.
The implications for equal protection analysis are
straightforward, as the Court of Appeal discerned: “[I]f, as the
Legislature stated, the goal of section 3051 was to apply the
Miller youth-related mitigating factors to young adults up to the
age of 26 in light of neuroscience research that demonstrated
the human brain continues to develop into a person’s mid-20’s,
25

PEOPLE v. HARDIN
Liu, J., dissenting
and thus to permit youth offenders a meaningful opportunity for
parole if they demonstrate increased maturity and impulse
control, then for that purpose there is no plausible basis for
distinguishing between same-age offenders based solely on the
crime they committed.” (People v. Hardin (2022) 84 Cal.App.5th
273, 288 (Hardin).) Just as there was no rational basis for
excluding persons with misdemeanor convictions from eligibility
for a teaching credential in Newland, or for excluding
osteopathic applicants from eligibility for medical licensure in
D’Amico, or for imposing more onerous disclosure rules on
lawyers than on other professionals in Hays, or for excluding
unrelated households from food stamp eligibility in Moreno,
there is no rational basis here for excluding inmates convicted
of special-circumstance murder from youth offender parole
eligibility. In each of the cited cases, the court evaluated the
classification against “the primary purpose” (maj. opn., ante, at
p. 26) of the statute and found the classification inconsistent
with that purpose. Those decisions did not impute additional,
unstated purposes that might have justified the challenged
classifications.
Nor did those decisions rely on the notion that legislative
bodies may proceed incrementally or train their attention
wherever they feel it is needed most. In Hays, we made clear
that when a legislature “chooses to address a particular area of
concern in less than comprehensive fashion,” “its decision as to
where to ‘strike’ must have a rational basis in light of the
legislative objectives.” (Hays, supra, 25 Cal.3d at p. 791.) To be
sure, equal protection doctrine gives legislators ample leeway to
avoid “all-or-nothing choices.” (Maj. opn., ante, at p. 45.) But if
the rational basis standard could be met by observing that the
challenged legislation reflects a political compromise, then
26

PEOPLE v. HARDIN
Liu, J., dissenting
virtually no enacted policy would ever fail rational basis review.
The Court of Appeal here rejected the argument that the
exclusion should be upheld “on the general principle that, when
addressing a problem, the Legislature may choose to proceed
incrementally,” aptly noting that “ ‘the fact that a line has to be
drawn somewhere does not justify its being drawn anywhere.’ ”
(Hardin, supra, 84 Cal.App.5th at pp. 290, 291.
B.
In reaching today’s holding, the court says the Legislature
had a second purpose when it expanded youth offender parole
eligibility to include young adult offenders: “[T]he structure and
history of the [parole eligibility] expansion make clear that the
Legislature sought to balance [its] primary objective with . . .
concerns about culpability and the appropriate level of
punishment for certain very serious crimes.” (Maj. opn., ante,
at p. 26.) Presumably the court points to “structure and history”
because the text of the original statute focuses solely on the
diminished culpability of youth and their capacity for
rehabilitation, and nothing in the text of the original statute or
subsequent expansions indicates concerns about culpability or
appropriate punishment for serious crimes. But neither
structure nor history helps the court’s argument either.
As for history, the court says “the legislative history
accompanying the amendments [expanding parole eligibility]
confirms that [crime-based distinctions] were deliberate
choices.” (Maj. opn., ante, at p. 26.) That is true, but I see no
probative value in quotations from legislative history observing
that the Legislature through multiple rounds of statutory
amendments retained distinctions based on the crime
committed. (Id. at pp. 26–27.) Those quotations simply describe
27

PEOPLE v. HARDIN
Liu, J., dissenting
what the statute does; they shed no light on the Legislature’s
rationale for the distinctions it drew. (Cf. Cooper, supra, 21
Cal.3d at p. 854 [“a suggested legislative purpose” of protecting
negligent drivers from liability to owner-passengers “does no
more than restate the terms of the statute itself and [does not]
indicate[] the general goal which the Legislature ostensibly
intended to promote in providing such ‘protection’ at owner-
passengers’ expense”].
As for structure, the court notes that the statute provides
for parole eligibility during a youth offender’s 15th, 20th, or 25th
year of incarceration depending on the controlling offense. (Maj.
opn., ante, at p. 27; see § 3051, subd. (b).) Based on the fact that
“the Legislature consciously drew lines that altered the parole
component of offenders’ sentences based not only on the age of
the offender (and thus the offender’s amenability to
rehabilitation) but also on the offense and sentence imposed,”
the court infers that those lines “necessarily reflect a set of
legislative judgments about the nature of punishment that is
appropriate for the crime.” (Maj. opn., ante, at p. 27.) As the
Court of Appeal explained, this “superficially plausible”
inference is implausible when one considers the role of the
controlling offense in the parole scheme. (Hardin, supra, 84
Cal.App.5th at p. 289.
The statute defines “ ‘controlling offense’ ” as “the offense
or enhancement for which any sentencing court imposed the
longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).) The
timing of parole eligibility is keyed to a person’s controlling
offense, not to the number of offenses or the aggregate sentence.
(Id., subd. (b).) This means that a young adult offender serving
an aggregate term of 85 years plus 189 years to life for two first
degree murders, six attempted premeditated murders, various
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PEOPLE v. HARDIN
Liu, J., dissenting
gang and firearm enhancements, and other crimes (People v.
Harris (Dec. 5, 2019, B288611) [nonpub. opn.]) is eligible for
parole on the same timeline as a young adult offender serving
25 years to life for a single count of first degree murder (§ 190,
subd. (a)). It means that a young adult offender serving 80 years
to life for two gang-related attempted premeditated murders
with firearm enhancements (People v. Itehua (June 30, 2016,
B265575) [nonpub. opn.]) is eligible for parole on the same
timeline as a young adult offender convicted of a single
attempted murder with a 25-year firearm enhancement
(§ 12022.53, subd. (d)). And it means a young adult offender
sentenced to more than 100 years to life for six attempted
premeditated murders, mayhem, gang enhancements, and
multiple firearm offenses and enhancements (People v. Jimenez
(Apr. 20, 2007, B192157) [nonpub. opn.]) is eligible for parole on
the same timeline as a young adult offender convicted of a gang-
related felony in which an accomplice shot and injured a victim
(§ 12022.53, subd. (e)(1)). What legislature “concern[ed] about
culpability and the appropriate level of punishment for certain
very serious crimes” (maj. opn., ante, at p. 26) would write a
statute with these results?
Today’s opinion says “the statute’s ‘controlling offense’
framework does rely on a certain amount of generalization about
the relationship between the lengthiest individual sentence the
offender has received and the culpability of the underlying
criminal conduct.” (Maj. opn., ante, at p. 30.) I suppose “a
certain amount of generalization” is in the eye of the beholder,
but consider: There are literally thousands of sentences
encompassed by the provision establishing parole eligibility in
the 25th year of incarceration for young adult offenders whose
controlling offense carries a term of 25 years to life. (§ 3051,
29

PEOPLE v. HARDIN
Liu, J., dissenting
subd. (b)(3).) The examples above are easily multiplied. (See,
e.g., People v. Sepulveda (2020) 47 Cal.App.5th 291, 295–297 [90
years to life for first degree murder, three counts of attempted
premeditated murder, drive-by shooting, and firearm and gang
enhancements, committed before age 22]; People v. Jones (Dec.
30, 2020, E073115) [nonpub. opn.] [50 years to life sentence for
single count of first degree murder with firearm and gang
enhancements, committed at age 18]; People v. Kennedy (Jan.
15, 2020, B264661) [nonpub. opn.] [“sentence of life, plus 173
years and eight months,” for second degree murder, four counts
of attempted premeditated murder, shooting at an occupied
vehicle, and gang and firearm enhancements, committed at age
22]; People v. Windfield (Jan. 15, 2020, E055062) opn. ordered
nonpub. Apr. 22, 2020, S260848 [90 years to life for first degree
murder, attempted premeditated murder, assault with a
semiautomatic weapon, and gang and firearm enhancements,
committed before age 23]; People v. Rakisits (Apr. 12, 2018,
B280133) [nonpub. opn.] [40 years to life for single count of
second degree murder with firearm enhancement, committed at
age 18].) To say that “the culpability of the underlying criminal
conduct” in all of these cases is “ ‘ “rough[ly]” ’ ” the same goes
well beyond “ ‘ “any gross generalizations.” ’ ” (Maj. opn., ante,
at p. 30.) It is simply irrational.
The Legislature presumably knew that the cases covered
by section 3501, subdivision (b)(3) span a vast range of
culpability based on the type and number of crimes committed
and enhancements charged, especially in light of the 25 years-
to-life firearm enhancement (§ 12022.53, subds. (d), (e)(1)),
which applies to a wide range of crimes. (See In re Greg F. (2012
55 Cal.4th 393, 407 [“The Legislature is presumed to be aware
of all laws in existence when it passes or amends a statute.”]; cf.
30

PEOPLE v. HARDIN
Liu, J., dissenting
Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308
(2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 4 [noting
that the parole board “held 2,519 youth offender hearings”
during the first three years of section 3051’s implementation].
Yet the Legislature chose to establish a uniform rule of parole
eligibility in the 25th year of incarceration for this large and
varied group of young offenders. As Hardin contends, that rule
is untethered to relative culpability. Today’s opinion does not
explain why the Legislature would have fixated on relative
culpability in its treatment of young adult offenders serving
LWOP sentences when it was clearly indifferent to the relative
culpability of young adult offenders serving non-LWOP
sentences ranging from a single term of 25 years to life up to a
wide array of de facto LWOP sentences. (See Cooper, supra, 21
Cal.3d at p. 852 [rejecting putative rationale for a classification
because it did not cohere with other parts of the statute];
Moreno, supra, 413 U.S. at pp. 536–537 [same].
The court says considerations of “the appropriate
punishment for the underlying crimes, depending on their
severity,” are “not dissimilar from the considerations that
prompted the high court [in Miller] to distinguish, for Eighth
Amendment purposes, between sentencing juveniles for
homicide offenses and sentencing juveniles for nonhomicide
offenses.” (Maj. opn., ante, at p. 28.) But the line drawn here
between LWOP and non-LWOP sentences does not track the
line between homicide and nonhomicide offenses. And more
fundamentally, the import of Miller is that juvenile sentencing
even for the most severe crimes must be bounded by what is
known about young offenders’ capacity for change. Miller held
that life without parole may be imposed on juvenile homicide
offenders only on “ ‘rare’ ” occasions based on an individualized
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PEOPLE v. HARDIN
Liu, J., dissenting
sentencing determination that “take[s] into account how
children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” (Miller,
supra, 567 U.S. at pp. 479, 480.) The Legislature, aware of
Miller, determined that young offenders’ transient traits and
capacity for change extend through age 25. Denying parole
eligibility to a subset of young offenders on the ground that their
culpability
categorically
trumps
their
potential
for
rehabilitation is plainly “dissimilar” (maj. opn., ante, at p. 28
from Miller’s emphasis on individualized sentencing
determinations to account for youth-related vulnerabilities.
At bottom, the court says that assessing culpability on the
basis of aggregate sentences or underlying criminal conduct is
“not the only possible way[] to evaluate culpability. That the
Legislature may have prescribed a measurement of culpability
different from Hardin’s does not mean the Legislature was not
attempting to measure culpability at all.” (Maj. opn., ante, at
p. 31.) But it is not Hardin’s measurement of culpability that
the “controlling offense” framework displaces. It is the
Legislature’s own measurements of culpability written into the
Penal Code, including prescribed sentences for certain crimes
and enhancements, as well as requirements for consecutive
sentencing. (E.g., §§ 190, subd. (a), 186.22, subd. (b)(1),
12022.53, subds. (b)–(e).) Notably, the court contends that the
Legislature leaned into its own measurement of culpability in
the special circumstances law (§ 190.2) when it excluded persons
like Hardin from parole eligibility. (Maj. opn., ante, at p. 41
[there is no crime that is “more serious, or that trigger[s] more
severe punishment, than special circumstance murder”]; see id.
at pp. 33–34.) And yet, the court would have us believe that the
Legislature elsewhere in section 3051 simply ditched the
32

PEOPLE v. HARDIN
Liu, J., dissenting
multitude of culpability measurements it has made throughout
the remainder of the Penal Code in favor of a three-tiered
measurement of culpability based only on an offender’s crime or
enhancement with the longest sentence. (See id. at pp. 30–31.
There is a far simpler explanation: In enacting and
expanding section 3051, the Legislature was not in the business
of measuring culpability at all, apart from recognizing the
diminished culpability of young offenders across the board. The
statute’s text and history make clear that the Legislature’s
purpose was to recognize the developmental vulnerabilities of
young offenders and provide them a chance to earn release by
demonstrating growth and change. As Hardin says, the parole
scheme simply reflects the Legislature’s general calibration as
to how much time is needed for rehabilitation based on a young
person’s most serious offense, keeping in mind that eligibility for
parole does not mean release. The tiered scheme embodies a
legislative judgment that while the attributes of youth are not
crime-specific, young people who commit more serious offenses
generally require more time for rehabilitation, while young
people who commit less serious offenses require less.
This view readily explains the flattening of myriad
gradations of crimes and underlying conduct into three tiers of
parole eligibility. Within a given tier, committing more crimes
typically results in greater harm and culpability, but in view of
the science on which the Legislature relied, it does not typically
indicate less potential for growth and rehabilitation. Moreover,
the 15-, 20-, and 25-year benchmarks are not random numbers;
they track the steeply declining risk of offending as people
mature beyond early adulthood. (See Lofstrom et al., Pub.
Policy Institute of Cal., Are Younger Generations Committing
Less Crime? (2023) p. 8, figure 1 [California age-crime curves
33

PEOPLE v. HARDIN
Liu, J., dissenting
showing that violent felony arrest rates decline significantly as
people mature into their 30s and 40s].) This commonsense
understanding of the eligibility framework, unlike the court’s
culpability rationale, is tethered to the Legislature’s stated
purpose of providing young offenders with an opportunity for
release in light of their diminished culpability and capacity for
change.
Finally, the court says “[t]he most natural” inference is not
that the Legislature “enacted a statute at odds with its own
rehabilitative ends” but that it was “attempting to pursue other
‘ “(perhaps even contrary) ends as well.” ’ ” (Maj. opn., ante, at
p. 28.) Similar reasoning could have been deployed in Newland,
D’Amico, Cooper, Moreno, and other cases. But Newland and
D’Amico did not infer a cost-saving purpose for the exclusions at
issue, Cooper did not accept an owner-negligence rationale for
barring suits by owner-passengers against permissive drivers,
and Moreno did not infer a fraud prevention purpose for
excluding unrelated households from food stamps. In each case,
the court measured the classification against the express or
primary purpose of the statute and did not hesitate to find the
“statute at odds with its own . . . ends.” (Maj. opn., ante, at
p. 28.) The court simply ignores this case law in claiming its
view of the statute is “[t]he most natural.” (Ibid.
It is easy to posit that the exclusion here reflects a
legislative assessment of culpability and proper punishment;
the court even says this is “necessarily” what the Legislature
thought. (Maj. opn., ante, at pp. 27, 32.) But there is not a single
mention of such an assessment in the repeated consideration of
this legislation. In contrast to the clear statements of
rehabilitative aims, nothing in the legislative record states that
young adult offenders serving LWOP are categorically more
34

PEOPLE v. HARDIN
Liu, J., dissenting
culpable than their parole-eligible peers serving de facto LWOP
or other lengthy sentences for very serious crimes. It is not hard
to imagine that such a claim, had it been asserted, would have
invited skepticism (see post, at pp. 36–41) as well as heightened
attention to the racial skew of the affected group and its
traceability to a history of racially inflected tough-on-crime
policies. (See dis. opn. of Evans, J., post, at p. 16 [“The LWOP
exclusion perpetuates extreme racial disparities in our criminal
and juvenile justice systems.”]; Com. on Revision of the Pen.
Code, Annual Report and Recommendations (2021), at pp. 51,
figure 24, 53 [among California LWOP inmates who were under
age 26 at the time of the offense, 86 percent are people of color
and 76 percent are Black or Latinx]; cf. Hetey & Eberhardt,
Racial Disparities in Incarceration Increase Acceptance of
Punitive Policies (2014) 25 Psychological Science 1949 [field
study showing that awareness of extreme racial disparities in
prison population made voters more accepting of punitive
policies and less likely to support reform].
The Legislature did not say why it excluded persons like
Hardin, and we should not paper over this lacuna by imputing
a purpose that the Legislature never had. As in past cases, we
should take the Legislature’s actual statement of purpose at its
word. Doing so, I would hold that the exclusion “fails to exhibit
any fair and reasonable relationship to the stated legislative
objective.” (Hays, supra, 25 Cal.3d at p. 795.
III.
Even if we were to assume that the Legislature had
concerns about culpability and appropriate punishment when it
excluded young adults convicted of special circumstance murder
from parole eligibility, we must still inquire whether such
35

PEOPLE v. HARDIN
Liu, J., dissenting
concerns provide a reasonable basis to distinguish the excluded
group from others who are eligible for youth offender parole.
A.
As the Court of Appeal explained, the rationality of the
exclusion “is belied by the statutory provisions that allow [a
parole] hearing for individuals who have committed multiple
violent crimes (albeit not special circumstance murder) and
were sentenced to a technically parole-eligible indeterminate
state prison term that is the functional equivalent of life without
parole. (Cf. People v. Caballero, supra, 55 Cal.4th at p. 268
[sentence of 110 years to life for three counts of attempted
premeditated murder with firearm-use and criminal street gang
enhancements ‘amounts to the functional equivalent of a life
without parole sentence’]; [citation].) The crime of a 20-year-old
offender who shot and killed his victim while attempting to
commit robbery and was sentenced to life without parole (see
§ 190.2, subd. (a)(17)(A)) cannot rationally be considered more
severe than those of a 20 year old who shot and killed his victim
one day, committed a robbery the next, and was sentenced to an
indeterminate term of 50 years to life (see §§ 190, subd. (a),
12022.53, subd. (d)), or who committed multiple violent crimes,
like Caballero, and received a parole-eligible indeterminate life
term that far exceeded his or her life expectancy.” (Hardin,
supra, 84 Cal.App.5th at p. 289.) As suggested by the many
cases cited above, persons sentenced to de facto LWOP but
eligible for a youth offender parole hearing are “far from
anomalous.” (Id. at p. 289, fn. 10.
But there is more for us to consider than a litany of
examples. As the Court of Appeal observed, the 2021 Annual
Report and Recommendations (2021 Report) of the Committee
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PEOPLE v. HARDIN
Liu, J., dissenting
on Revision of the Penal Code, a statutorily created committee
of the California Law Revision Commission (Gov. Code, §§ 8280
et seq.), cited recent research showing that “special
circumstance allegations could have been charged in 95 percent
of all first degree murder convictions, leaving the decision
whether a life without parole sentence may be imposed to the
discretion of local prosecutors, rather than a matter of statewide
policy. (2021 Report, at p. 51.)” (Hardin, supra, 84 Cal.App.5th
at p. 290, fns. omitted.
The 95 percent figure comes from a study of over 27,000
California murder and manslaughter convictions between 1978
and 2002, led by the late Professor David Baldus. The findings,
based on a representative sample of 1,900 cases, are
comprehensively reported with methodological details in a pair
of recent articles. (See Baldus et al., Furman at 45:
Constitutional Challenges from California’s Failure to (Again
Narrow Death Eligibility (2019) 16 J. Empirical Legal Studies
693 (Baldus study); id. at pp. 713, 714, table 2 [reporting the 95
percent figure]; Grosso et al., Death by Stereotype: Race,
Ethnicity, and California’s Failure to Implement Furman’s
Narrowing Requirement (2019) 66 UCLA L.Rev. 1394.) One of
the authors, Professor Catherine Grosso, further reports in an
amicus brief that among persons under the age of 26 who were
convicted of first degree murder, 98 percent could have been
charged with one or more special circumstances, and that in Los
Angeles County, the figure is 99 percent. (See also Baldus
study, at pp. 719–723 [California has the highest percentage of
homicide cases that are death eligible among all states].
The court’s only direct response to these data is a brief
comment that “the study appears to suggest that certain specific
special circumstances, added through various amendments
37

PEOPLE v. HARDIN
Liu, J., dissenting
after the initial enactment of section 190.2, have led to the
results found in the study,” and that Hardin is in no position to
challenge “[t]he special circumstance finding at issue in [his]
own case [i.e., robbery-murder]” because it “is based on a
provision of the law that dates back to the initial enactment of
section 190.2” in 1973. (Maj. opn., ante, at pp. 39–40.) But this
does not accurately characterize the Baldus study or its
relevance to Hardin’s case. It ignores the fact that the Baldus
study suggests the high rate of factually death-eligible cases
among first degree murders is significantly attributable to the
felony murder special circumstance, including robbery murder,
that has existed since early iterations of section 190.2. (See
Baldus study, supra, 16 J. Empirical Legal Studies at p. 729,
fn. 122 [robbery felony-murder special circumstance accounted
for 55 percent of factually death-eligible homicide cases during
a period when that special circumstance required proof of intent
to kill].) It also ignores the Baldus study’s citation to an earlier
study of several hundred California murder convictions with an
appellate decision between 1988 and 1992, which found that 84
percent of first degree murder cases were death-eligible under
the statute. (Id. at p. 704, citing Shatz & Rivkind, The
California Death Penalty Scheme: Requiem for Furman? (1997
72 N.YU. L.Rev. 1283, 1332.) That earlier study, on the very
page cited by the Baldus study, states: “The majority of first
degree murders are felony murders, and felony murders are
virtually all special circumstances murders. Thus, the felony
murder special circumstances alone defeat any possibility of
genuine narrowing.” (Shatz & Rivkind, at p. 1332, fn. omitted.
To be sure, charging decisions that result in a special
circumstance conviction may attempt to target the most severe
and culpable conduct among factually eligible cases. But it is
38

PEOPLE v. HARDIN
Liu, J., dissenting
undeniable that charging decisions are also influenced by many
factors unrelated to offense severity and culpability, including
the policies and priorities of the district attorney, the attitudes
and demographics of the jury pool, the strength of the evidence,
and available resources. As noted in an amicus brief filed here
by the Prosecutors Alliance of California in support of neither
party, “charging decisions have created racial, geographic, and
temporal disparities between offenders who were charged with
special-circumstance murder and those who were charged with
murder without a special circumstance.” Layered on top of well-
known racial and geographic disparities are “the vicissitudes of
charging decisions (and politics) over time,” the brief observes.
Such temporal disparities “mean that someone was more likely
to be convicted of special-circumstance murder” during the
tough-on-crime era of the past than during more recent years
“for effectively the same crime.”
The court is correct that “Hardin does not argue that
prosecutorial discretion itself offends equal protection.” (Maj.
opn., ante, at p. 37.) But that is not the issue. The issue, on the
court’s own view of legislative purpose, is whether it is rational
to exclude young offenders convicted of special circumstance
murder from parole eligibility on the ground that they are more
culpable or have committed more severe offenses than their
peers convicted of simple first degree murder. In other words,
is special circumstance murder in actuality “a uniquely serious
offense” (id. at p. 2) for purposes of youth offender parole
eligibility? No one disputes that “[s]pecial circumstance murder
is an unquestionably grave offense, one that exacts an
unimaginable toll on the lives of victims and those the victims
leave behind.” (Id. at p. 43.) But does that distinguish special
39

PEOPLE v. HARDIN
Liu, J., dissenting
circumstance murder from all or any first degree murders in this
context?
The panoply of charging factors unrelated to culpability,
along with the sheer number of factually eligible cases among
first degree murders, casts considerable doubt on the
proposition. As Professor Grosso observes in her amicus briefing
here, a special circumstance conviction cannot reasonably serve
as a proxy for severity of the crime “when virtually all of the
youthful first-degree offenders who are eligible for parole
consideration committed crimes that qualify for sentencing
under California’s special circumstances statute.” (Accord,
Hardin, supra, 84 Cal.App.5th at pp. 289–290 [“[W]ith respect
to first degree murder, any purported legislatively recognized
distinction in culpability between individuals serving a parole-
eligible indeterminate life sentence and those sentenced to life
without parole is illusory.”].
B.
Instead of grappling with these data, today’s opinion says
the Baldus study is “not part of the record in this case” and
“ha[s] never been the subject of any sort of adversarial testing.”
(Maj. opn., ante, at p. 38.) But the study’s findings are a
prominent feature of the Court of Appeal’s reasoning as well as
Hardin’s arguments and substantial amicus briefing in this
court. Indeed, before we set this matter for oral argument, we
took the affirmative step of directing, not inviting, the Attorney
General to file an answer to the amicus briefing in this case. In
his answer, the Attorney General did not take issue with the
study’s findings or methodology.
Among the hundreds of pages of briefing in this case, only
one amicus brief, filed by the San Bernardino County District
40

PEOPLE v. HARDIN
Liu, J., dissenting
Attorney, questions the reliability of the Baldus study. That
brief asserts that the study’s data were “produced by
inexperienced law students and recent graduates reading
probation reports,” that probation reports may omit information
important to charging decisions, and that the study yielded the
“strange” finding that there is a higher rate of factually death-
eligible cases among voluntary manslaughters (47 percent) than
among second degree murders (38 percent), though the reported
rate among first degree murders is far higher (95 percent). But
the amicus brief does not engage with the coding protocol
described at length in the peer-reviewed study. The protocol
sets forth a series of detailed rules for characterizing cases,
acknowledges and addresses the limitations of probation
reports, includes methods for curing insufficient information in
a probation report, and notes that ultimately 11 percent of cases
had insufficient information to permit characterization. (See
Baldus study, supra, 16 J. Empirical Legal Studies at pp. 708–
713 & fns. 81, 83.) Neither the court nor any party or amicus
has identified any specific shortcoming of the research protocol.
While acknowledging the study’s findings, the Attorney
General argues that “rational basis review does not require
mathematical precision or a perfect fit.” But no one is insisting
on mathematical precision or a perfect fit. The issue is whether
there is any reasonable relation between the classification
drawn and the purported purpose of calibrating youth offender
parole eligibility to offense severity and culpability. The Baldus
study and related findings in Professor Grosso’s amicus brief are
clearly relevant to that issue, and these findings have been
brought to our attention in the tradition of a “Brandeis brief.”
(See Muller v. Oregon (1908) 208 U.S. 412, 419 & fn. †
[discussing the 113-page brief by then-attorney Louis Brandeis
41

PEOPLE v. HARDIN
Liu, J., dissenting
that documented social science research on the negative effects
of long working hours on women’s well-being].) “[W]hen a
question of fact is debated and debatable, and the extent to
which a special constitutional limitation goes is affected by the
truth in respect to that fact,” courts “take judicial cognizance of
all matters of general knowledge.” (Id. at pp. 420–421.) This is
a familiar practice in constitutional adjudication. (See, e.g.,
Graham, supra, 560 U.S. at p. 68 [“As petitioner’s amici point
out, developments in psychology and brain science continue to
show fundamental differences between juvenile and adult
minds.”]; People v. Contreras (2018) 4 Cal.5th 349, 362–363
[citing empirical research outside the record in rejecting an
actuarial approach to defining life expectancy of juvenile
offenders]; Johnson, supra, 60 Cal.4th at pp. 883–884 [citing
empirical research outside of the record in determining that
there is “more than a speculative possibility that sexual
predators are more successful in manipulating minors to engage
in oral copulation, as opposed to sexual intercourse”].) Does the
court believe these decisions, in relying on “untested empirical
findings,” violate “multiple settled principles of judicial review”?
(Maj. opn., ante, at p. 38.
If the concern is that the Baldus study has not been
subject to adversarial testing, then the prudent course is to
remand this case for factual development in the trial court. In
D’Amico, we were careful to ensure adequate presentation of
“ ‘constitutional facts’ bearing upon the validity of the [statute
excluding osteopaths from medical licensure] under the equal
protection clause.” (D’Amico, supra, 11 Cal.3d at p. 16; see id.
at pp. 9–10 [observing that the Court of Appeal had initially
declined to decide the equal protection issue and remanded the
matter to the trial court for development of relevant facts].) In
42

PEOPLE v. HARDIN
Liu, J., dissenting
U.S. Steel, we similarly indicated that the equal protection issue
could not be settled “[w]ithout a more complete record”; we said
we lacked an adequate factual basis for evaluating how
burdensome it would be to truckers and the PUC to determine
for rate-setting purposes whether foreign steel is transported by
common carrier or private vessel. (U.S. Steel, supra, 29 Cal.3d
at p. 614.) And the Massachusetts high court, in a recent
decision holding LWOP unconstitutional for 18- to 20-year-olds,
noted that it had earlier “remanded the defendant’s case to the
Superior Court for ‘development of the record with regard to
research on brain development after the age of seventeen [in
order to] allow us to come to an informed decision as to the
constitutionality of sentencing young adults to [LWOP].’ ”
(Commonwealth v. Mattis (Mass. 2024) 224 N.E.3d 410, 416, fn.
omitted.
To the extent the court has similar concerns in this case,
we should take a similar course. We should not dodge a key
component of the equal protection claim on the ground that it
was “not litigated in the trial court” (maj. opn., ante, at p. 38
and then proceed to establish a precedent rejecting the equal
protection claim. If “untested empirical findings” are the
concern (ibid.), then why not remand this matter for factual
development in light of the highly relevant information that has
been brought to our attention? The court gives no reason. This
head-in-the-sand approach — opting for less rather than more
information in deciding a major constitutional question —
hardly seems like a sound way to exercise judicial review.
C.
Ultimately, the core of the court’s reasoning is that our
case law has held in the Eighth Amendment context that
43

PEOPLE v. HARDIN
Liu, J., dissenting
“section 190.2 adequately separates the most egregious first
degree murders — those deserving of the most severe
punishment available — from the rest” and that “[g]iven this
body of case law, it is difficult to see how the Legislature that
enacted section 3051 could have acted irrationally in singling
out special circumstance murder as a particularly culpable
offense.” (Maj. opn., ante, at pp. 35, 36.
It is true that our capital cases have repeatedly upheld the
special circumstances statute against claims that it does not
properly serve the narrowing function required by the Eighth
Amendment for imposition of the death penalty. But what the
court leaves unsaid is that none of the cases in its lengthy string
cites illuminates the underlying rationale of the Eighth
Amendment holding; the cases simply refuse to revisit
precedent or summarily reject the claim without analysis. (See
maj. opn., ante, at p. 35 & fn. 6 [citing 12 cases that contain no
substantive analysis of the issue].
Today’s decision cites People v. Green (1980) 27 Cal.3d 1,
61, which “explained why the law treats robbery-murder as
more culpable than simple murder.” (Maj. opn., ante, at p. 36.
But that case said nothing about whether the robbery-murder
special circumstance, in operation, actually distinguishes
crimes that are more culpable than simple murder offenses. The
court also cites People v. Bacigalupo (1993) 6 Cal.4th 457
(Bacigalupo) in asserting that special circumstances “mark a
first degree murder [as] particularly egregious.” (Maj. opn.,
ante, at p. 34.) We said in that case: “In California, the special
circumstances serve to ‘ “guide” ’ and ‘ “channel” ’ jury discretion
‘by strictly confining the class of offenders eligible for the death
penalty.’ [Citation.] As the criteria in the California capital
scheme that define the class of murders for which death is a
44

PEOPLE v. HARDIN
Liu, J., dissenting
potential penalty, the special circumstances set forth in section
190.2 must comport with Eighth Amendment requirements by
providing not only clear and objective standards for channeling
jury discretion, but also detailed and specific guidance, thus
making the process for imposing a death sentence ‘ “rationally
reviewable.” ’ [Citation.] [¶] Under our death penalty law,
therefore, the section 190.2 ‘special circumstances’ perform the
. . . constitutionally required ‘narrowing’ function” of
“circumscrib[ing] the class of murderers eligible for the death
penalty.” (Bacigalupo, at pp. 467–468.) That was the extent of
our analysis.
Bacigalupo described the intended function of special
circumstances but undertook no empirical inquiry or factual
analysis of the statute’s actual operation. That is because the
main issue in Bacigalupo was not whether section 190.2
adequately performs the constitutionally required narrowing
function. It was whether the sentencing considerations at the
penalty phase (§ 190.3) must satisfy the Eighth Amendment’s
narrowing principle. (Bacigalupo, supra, 6 Cal.4th at pp. 462–
463.) On that issue, we said that “when a capital punishment
statute adequately narrows the class of death-eligible
murderers, the Eighth Amendment does not require a further
round of ‘narrowing’ at the sentence selection stage.” (Id. at
p. 475.) Bacigalupo did not address whether special
circumstances actually fulfill their intended narrowing function.
Today’s opinion cites only one case that examined data on
the operation of the special circumstances statute, People v. Frye
(1998) 18 Cal.4th 894, 1028–1029 (Frye), and acknowledges that
“[o]ur treatment of the issue in Frye was admittedly terse, and
it relied on a different study than the one on which Hardin now
relies.” (Maj. opn., ante, at p. 38.) Given these qualifiers, it is
45

PEOPLE v. HARDIN
Liu, J., dissenting
not clear what persuasive value the court thinks Frye has here.
The defendant in Frye argued that “virtually all first degree
murders are death eligible” based on “a statistical analysis . . .
of published appeals from murder convictions for the years
1988–1992.” (Frye, at pp. 1028, 1029; cf. Shatz & Rivkind,
supra, 72 N.Y.U. L.Rev. at pp. 1326–1335.) Our opinion in Frye
did not discuss or even mention the actual data. Instead, we
rejected the claim in three short sentences: “Defendant’s
argument notwithstanding, the special circumstances ‘are not
overinclusive by their number or terms.’ ([People v. Arias (1996
13 Cal.4th 92, 187].) Nor have they been construed in an overly
expansive manner. (Ibid.; see also People v. Morales (1989) 48
Cal.3d 527, 557–558 [lying-in-wait]; People v. Marshall (1990
50 Cal.3d 907, 946 [felony murder]; People v. Anderson (1987
43 Cal.3d 1104, 1147 [felony murder].) Defendant’s statistics do
not persuade us to reconsider the validity of these decisions.”
(Frye, at p. 1029.) The cases cited in Frye shed no further light
on the issue, and today’s opinion cites nothing else.
What we have, then, is a body of case law that has never
grappled with empirical findings regarding the actual operation
of special circumstances, much less with findings based on data
as comprehensive as those in the Baldus study. On this point,
the court does not and cannot disagree. Instead, today’s
decision, like the cases it cites, simply piles citation upon
citation. But when one follows the trail of citations in search of
a foundational rationale or analysis, one comes up empty.
“Truly, this is ‘turtles all the way down.’ ” (Rapanos v. United
States (2006) 547 U.S. 715, 754 (maj. opn. of Scalia, J.).
I suppose the Legislature could have posited that special
circumstance murder is categorically worse than other murders
based on the mere fact that this court has said it again and
46

PEOPLE v. HARDIN
Liu, J., dissenting
again. But the fact that our cases have said it does not make it
so. Under rational basis review, “ ‘the constitutionality of a
statute predicated upon the existence of a particular state of
facts may be challenged by showing to the court that those facts
have ceased to exist.’ ” (Brown, supra, 8 Cal.3d at p. 869.) We
have been shown information that forcefully challenges the
rationality of including youthful offenders convicted of simple
first degree murder in the parole scheme while excluding
youthful offenders convicted of special circumstance murder.
This information calls for serious engagement and analysis, not
repeated citation to ipse dixit in our case law.
D.
Toward the end of today’s opinion, the court says it does
not decide “the constitutionality of section 3051, subdivision (h
as it might arise in other as-applied challenges based on
particular special circumstances or the factual circumstances of
individual cases.” (Maj. opn., ante, at p. 42; see id. at p. 40
[“While we do not foreclose the possibility of other challenges to
the distinctions drawn by the special circumstance statute
based on a more robust record and a more focused as applied
inquiry.”].) It is not clear what the court means in dangling this
possibility. Does it mean that Hardin or someone like Hardin
could bring a challenge to the felony murder special
circumstance by comparing such cases with simple murder cases
in which the felony murder special circumstance was not
charged or not found true? Or does it mean that a litigant in
Hardin’s position would have to bring a challenge specifically to
the robbery-murder special circumstance, since that is the one
he was convicted of? Or does it mean that a litigant would have
to focus the equal protection claim not simply on a “particular
special circumstance[]” but more narrowly on a comparison to
47

PEOPLE v. HARDIN
Liu, J., dissenting
“individual cases” (id. at p. 42) that did not result in a special
circumstance charge or finding but involved similar facts?
Although the court’s lack of elaboration may be
understandable, its gesture of purportedly leaving the door open
to future challenges should invite some skepticism. For it is not
clear how a litigant can succeed on a “more focused” claim (maj.
opn., ante, at p. 40) without running into the argument that
even if there is disparate treatment within a subset of similar
cases (defined by a particular special circumstance or set of
factual circumstances), the overall classification of persons
convicted of special circumstance murder as more culpable than
persons convicted of simple murder is a “ ‘gross generalization[]
and rough accommodation[] that the Legislature seems to have
made’ ” and that “ ‘we must accept’ ” (id. at p. 30). Indeed, given
a prison population as large as ours, many young offenders
serving LWOP could cite one or more cases involving equally if
not more culpable conduct that received less punitive treatment.
Presumably it would be easy for the court to reject such claims
by moving the analysis up one or more levels of generality.
What the court envisions as the proper level of “focus” is a
mystery. The open-door language reads like an attempt to
cushion the blow of today’s decision; time will tell whether it
offers only hollow hope.
IV.
Amidst all the legal reasoning in this case, what is missing
are the facts of Tony Hardin’s crime, committed in 1989 at age
25, and a real-life understanding of why the Legislature raised
the cutoff for youth offender parole eligibility to age 26.
According to the Court of Appeal decision affirming his
conviction, the evidence showed that Hardin was friends with
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PEOPLE v. HARDIN
Liu, J., dissenting
his elderly neighbor, Norma Barber. One night, Hardin killed
Barber in her home by strangling her and stole her jewelry,
VCR, Vantage cigarettes, car keys, and other items because he
was “desperate to buy drugs and had no money to do so.” Hardin
also stole two cans of beer from her fridge. The next morning,
Hardin tried to buy cocaine from a drug dealer using Barber’s
necklace. The dealer refused but offered Hardin drugs in
exchange for a ride to pick up a drug supply. Hardin complied
and drove Barber’s car, which had a personalized license plate.
After they picked up the drugs, Hardin drove to a pawn shop
and parked the car illegally in the lot. Inside the shop, Hardin
exchanged Barber’s jewelry for $15 and filled out the pawn slip
with his name and provided a thumbprint. Meanwhile, the car
was ticketed by a traffic officer.
Hardin used the $15 to buy cocaine from the dealer. That
evening, Hardin asked for more cocaine and used the VCR as
payment. He also offered Barber’s microwave and brought the
dealer to Barber’s apartment. There, Hardin held the door open
while the dealer took the microwave and other items. Hardin
also lent the dealer Barber’s car, which he parked nearby, for
additional cocaine. Sometime after, police came to question
Hardin at his home. Hardin spoke to the police and denied ever
driving Barber’s car. During the interview, police saw Vantage
cigarette butts on an ashtray as well as cans of beer that
Barber’s son had reported missing. Hardin was ultimately
arrested, charged, and convicted. It does not take much to
recognize that Hardin’s crime, driven by a drug habit and devoid
of any sophistication, exhibited many of the hallmark features
of youth: “recklessness, impulsivity, and heedless risk-taking”
(Miller, supra, 567 U.S. at p. 471); “inability to assess
consequences” (id. at p. 472); “inability to deal with police
49

PEOPLE v. HARDIN
Liu, J., dissenting
officers” (id. at p. 477); and vulnerability to substance abuse (id.
at p. 478).
It is now almost 35 years later, and Hardin is 60 years old.
I do not know whether he is a changed man. But no one disputes
that the basic propositions of “science,” “social science,” and
“common sense” (Miller, supra, 567 U.S. at p. 471) on which the
Legislature relied in expanding youth offender parole eligibility
apply equally to all young adults, whatever their crimes. The
Attorney General, citing amicus briefs filed by neuroscience
scholars and by Human Rights Watch, says “[t]he People have
never disputed that ‘[f]undamental changes in brain
development’ may occur through age 25, or whether certain
young adult offenders initially sentenced to life terms have been
capable of demonstrating ‘remarkable’ reform.” Some young
offenders may be unable to show sufficient rehabilitation to gain
parole; eligibility does not mean release. But the Legislature
recognized that many young offenders — through normal
maturation as well as years of hard work in coming to terms
with their past conduct, repaying debts to victims and society,
and bettering themselves and others — are capable of change
and deserve a meaningful chance at life beyond prison walls.
Upon “ ‘a serious and genuine judicial inquiry’ ” (Newland,
supra, 19 Cal.3d at p. 711), I see no rational basis for extending
youth offender parole eligibility to persons convicted of simple
murder regardless of the number or severity of their crimes,
while denying it to the Tony Hardins who have been condemned
to die in prison for committing similar crimes in their youth. I
again join numerous judges throughout the state in urging the
Legislature to revisit this issue. (See, e.g., People v. Jackson
(2021) 61 Cal.App.5th 189, 202a–202b (conc. stmt. of Liu, J.
50

PEOPLE v. HARDIN
Liu, J., dissenting
review den. June 9, 2021, S267812; see also maj. opn., ante, at
pp. 42–43.
While I agree with the court’s decision to dispense with the
“similarly situated” step of our equal protection doctrine, I
dissent from the merits of today’s equal protection holding. I
would affirm the judgment of the Court of Appeal.
LIU, J.
51

PEOPLE v. HARDIN
S277487
Dissenting Opinion by Justice Evans
Tony Hardin committed a murder in 1989 when he was 25
years old. Hardin, who is African American, was convicted of
special circumstance murder and sentenced to life without the
possibility of parole (LWOP). In 2021, Hardin moved for a
hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261
(Franklin) to preserve evidence related to youth mitigating
factors for an eventual youth offender parole hearing. The
superior court denied the motion on the grounds he was
ineligible for a youth offender parole hearing based on his
LWOP sentence. (Pen. Code, § 3051, subd. (h).)1
The question presented is whether section 3051’s
exclusion of youthful offenders from the youth offender parole
eligibility scheme based on their LWOP sentence violates equal
protection. I would hold that it does. The LWOP exclusion
offends the Legislature’s only express and articulated purpose
of the youth offender parole eligibility scheme and lacks
rationality. The exclusion bears the taint of racial prejudice and
perpetuates extreme racial disparities plaguing our juvenile and
criminal justice systems. Thus, I conclude it fails any mode of
rational basis review. With respect, I dissent.
1
All further unspecified statutory references are to the
Penal Code.
1

PEOPLE v. HARDIN
Evans, J., dissenting
I.
Level of Scrutiny & Lens of Deference
Several amici urge the court to apply strict scrutiny.
Under the federal equal protection clause, strict scrutiny only
applies where the challenged regulation involves a fundamental
right or a suspect classification. (Massachusetts Bd. of
Retirement v. Murgia (1976) 427 U.S. 307, 312.) Hardin
concedes it does not apply here.
Even assuming strict scrutiny does not apply to the
exclusion at issue here, rational basis review still requires us to
engage in a “ ‘serious and genuine’ ” inquiry between the
classification and the legislative objective at issue in this case.
(Newland v. Board of Governors (1977) 19 Cal.3d 705, 711.
While I generally agree that this exclusion fails under any form
of rational basis review (see dis. opn. of Liu, J., ante), I write
separately to explain that the nature of the deprivation and
whether the classification can be attributed to bias should
inform this court’s mode of deference. A rational basis review
that considers racial disparities in classifications is particularly
appropriate in cases such as this “where the challenged
classification
appears
to
impose
a
substantially
disproportionate burden on the very class of persons whose
history inspired the principles of equal protection.” (State v.
Russell (Minn. 1991) 477 N.W.2d 886, 889.)2
2
The majority declines to consider the significance of the
racially disparate impact of the LWOP exclusion by faulting
Hardin for not having raised a claim that heightened scrutiny
applies on that basis. (Maj. opn., supra, at pp. 43–44, fn. 4.
However, amici raised that argument and, following our order
2

PEOPLE v. HARDIN
Evans, J., dissenting
The LWOP exclusion disproportionately impacts Black
and Brown youth. It perpetuates racial disparities in LWOP
sentences for youthful offenders. While perhaps unintentional,
it nonetheless embodies racial bias that has plagued our
criminal and juvenile justice systems since their inception. The
stakes could not be higher. The differential treatment means
the difference between whether young people who are otherwise
worthy of release will die in prison or will return to society
following a grant of parole. The impact of that deprivation on
an individual and their family cannot be overstated. As the
majority recognizes, the deprivation also extends to a societal
level. Society benefits from the return of rehabilitated
individuals sentenced to LWOP to their communities. (See
Human Rights Watch, I Just Want to Give Back: The
Reintegration of People Sentenced to Life Without Parole (June
2023) p. 4 to-give-back/reintegration-of-people-sentenced-to-life-without-
parole> [as of Mar. 4, 2024].)3
Notably, a sister court has recognized that the equal
protection guarantee of its state constitution “hold[s] lawmakers
to a higher standard of evidence when a statutory classification
demonstrably and adversely affects one race differently than
other races, even if the lawmakers’ purpose in enacting the law
was not to affect any race differently.” (Fletcher Props. v. City
of Minneapolis (Minn. 2020) 947 N.W.2d. 1, 19 (Fletcher).) In
directing him to do so, the Attorney General filed an answer
addressing that argument. Thus, due consideration of the
racially disparate impact of the LWOP exclusion is warranted.
3
All Internet citations in this opinion are archived by year,
docket number, and case name at 38324.htm>.
3

PEOPLE v. HARDIN
Evans, J., dissenting
such cases, the Minnesota equal protection clause demands
“actual (and not just conceivable or theoretical) proof that a
statutory classification serves the legislative purpose.” (Ibid.
The parties here do not present any argument that the equal
protection guarantee of California’s constitution likewise
requires this heightened degree of rational basis analysis. In
my view, the resolution of that question is not determinative in
this case. Our mode of deference, however, must take into
account whether the challenged classification results in
demonstrable and adverse racial discrimination.
With these principles in mind, I turn to the question of
whether section 3051’s LWOP exclusion fails rational basis
review.
II.
Application of the Rational Basis Standard
I begin with the articulated purpose of section 3051. The
parties agree the articulated objective of section 3051 is to
provide youthful offenders with a meaningful opportunity to
obtain release upon a showing of maturation and rehabilitation.
In extending youth offender parole eligibility to those who
committed a crime before they were 26 years of age, the
Legislature relied on brain science establishing the attributes of
youth are maintained until age 26.4 The LWOP exclusion —
which impacts youthful offenders who were 18 to 25 years old at
4
Recently, the Massachusetts Supreme Court relied on
similar brain science pertaining to 18 to 20 year olds in holding
LWOP sentences for that age group violated the Massachusetts
State Constitution’s prohibition against cruel and unusual
punishment. (Commonwealth v. Mattis (Mass. 2024) 224
N.E.3d 410.
4

PEOPLE v. HARDIN
Evans, J., dissenting
the time of the offense — is entirely at odds with that statutory
objective and the brain science motivating the enactment and
extension of youth offender parole eligibility. Youthful offenders
sentenced to LWOP, as a class, have the same capacity for
maturation and rehabilitation as their parole-eligible
counterparts. Their youthful age — not their offense or
sentence — is what makes them less morally culpable and more
likely to rehabilitate themselves such that they should be
entitled to a youthful offender parole hearing.
The majority speculates the Legislature excluded youthful
offenders sentenced to LWOP to account for their culpability
based on their offense of special circumstance murder. This
purported purpose not only conflicts with the statute’s actual
purpose, but there is nothing in the statute or its history
indicating the Legislature was motivated by any “culpability”
rationale. (Maj. opn., ante, at pp. 26, 29; see dis. opn. of Liu, J.,
ante, at pp. 23–36.) Contrary to the majority’s hypothesis, the
Legislature’s decision to tether the youthful offender parole
eligibility date to a youthful offender’s controlling offense does
not reflect rational judgments about culpability. (See dis. opn.
of Liu, J., ante, at pp. 28–33.) What’s more, the framework has
little to no relevance to the Legislature’s choice to enact the
exclusion at issue before us. It is one thing to designate varying
parole eligibility dates based on a youthful offender’s controlling
offense. It is quite another to exclude a class of youthful
offenders from parole eligibility entirely based on their sentence,
given the underlying rationale for youth offender parole.
Even assuming we can impute a legislative rationale that
is contrary to a statute’s purpose, a “culpability” rationale for
the LWOP exclusion here is irrational. The hallmarks of youth
and the heightened potential for rehabilitation are not crime-
5

PEOPLE v. HARDIN
Evans, J., dissenting
specific. (Miller v. Alabama (2012) 567 U.S. 460, 473.) In
retaining the attributes of youth until age 26, as the Legislature
recognized, youthful offenders “cannot with reliability be
classified among the worst offenders.” (Roper v. Simmons (2005
543 U.S. 551, 569.) As noted, youthful offenders who have been
sentenced to LWOP are just as capable of becoming
rehabilitated as their peers. Given the neuroscience, excluding
youthful offenders from parole eligibility based on their offense
does not make rational sense.
The imputed “culpability” rationale is also belied by
uncontroverted evidence presented to the Legislature and this
court.5 As the Committee on Revision of the Penal Code noted,
recent research has shown that 95 percent (in one study, 98
percent) of first degree murders could be charged as special
circumstance murder and that factors other than culpability —
including race — impact whether youth are convicted of special
circumstance murder or simple first degree murder. (Com. on
Revision of the Pen. Code, Annual Report and
Recommendations (2021) pp. 51–52 Pub/Reports/CRPC_AR2021.pdf> [as of Mar. 4, 2024] (Annual
Report).) According to the Committee, 96 percent of LWOP
5
The majority declines to engage with this uncontroverted
research on the grounds that it was not subject to adversarial
testing in the trial court (see maj. opn., ante, at p. 38) and that,
even if taken at face value, the study does not “say[] nor
suggest[] that California’s special circumstance law is
categorically invalid.” (Maj. opn., ante, at p. 39.) But, contrary
to the majority’s suggestion, our hands are not tied. We can do
as we have previously done and remand the matter to the trial
court for further factual development (see dis. opn. of Liu, J.,
ante, at pp. 42–43) and then decide whether there is a rational
basis for the differential treatment of youthful offenders.
6

PEOPLE v. HARDIN
Evans, J., dissenting
sentences are based on a special circumstance murder. (Id. at
p. 51.) Hardin was convicted of a felony murder special
circumstance. Felony murder special circumstance accounts for
over 50 percent of the LWOP sentences for special circumstance
murder. (Id. at p. 52.) Unlike other special circumstances, the
felony murder special circumstance does not require a mens rea
of intent to kill. (See People v. Anderson (1987) 43 Cal.3d 1104,
1138–1139.
Black people are disproportionately convicted of the
felony-murder special circumstance. (Annual Report, supra, at
p. 52.) As the Annual Report noted, 42 percent of people
convicted of felony murder special circumstance are Black
“compared to only 34% of the overall first-degree murder
population and 26% of the second-degree murder population.”
(Ibid.) “Rates of felony murder special circumstance convictions
also vary by the intersection of race and age. . . . Black
individuals sentenced to LWOP for felony murder are much
more likely to be younger at the time of offense than their White
counterparts. In fact, almost half of people who were sentenced
to LWOP through felony murder for offenses that took place
when they were under the age of 21 are Black.” (Special
Circumstances Conviction Project, Life Without Parole and
Felony Murder Sentencing in California (2023) p. 9
Report11.pdf> [as of Mar. 4, 2024].
While racial disparities exist across age groups, racial
disparities are most prevalent “among people who were 25 or
younger at the time of the offense and received a life without
parole sentence — 86% are people of color.” (Annual Report,
supra, at p. 53.) The total LWOP population in California is over
5,000, and 62 percent are youthful offenders. (Id. at pp. 50, 53.
7

PEOPLE v. HARDIN
Evans, J., dissenting
Of the roughly 3,100 youthful offenders sentenced to LWOP, 38
percent are Black, 38 percent are Latinx, 14 percent are White,
2 percent are Asian or Pacific Islander, 2 percent are American
Indian/Alaskan Native, and 7 percent are “other.” (Id. at p. 51.
In contrast, for the overall LWOP population, 35 percent are
Black, 35 percent are Latinx, and 21 percent are White, with the
same percentages for the remaining demographic groups.
(Ibid.) The seven percent point differential (86 percent of
youthful offenders sentenced to LWOP are people of color,
compared to 79 percent of the overall LWOP population are
people of color) is due to an increased rate in sentencing Black
and Latinx youth to LWOP, and a decreased rate in sentencing
White youth to LWOP.6 (Ibid.) “African American youth are
sentenced to life without parole at a rate that is 18.3 times the
rate for whites. Hispanic youth in California are sentenced to
life without parole at a rate that is five times that for white
youth in the state.” (Human Rights Watch, When I Die, They’ll
Send Me Home: Youth Sentenced to Life Without Parole in
California (Jan. 2008) Vol. 20, No. 1 (G) p. 4
[as
of Mar. 4, 2024].) This racially disparate impact makes it
especially important that we evaluate the classification against
the Legislature’s articulated purpose and reject the exclusion as
irrational. (See Fletcher, supra, 947 N.W.2d at 19.
The Legislature was well aware of the racial disparities in
LWOP sentences for youthful offenders, as the legislative
6
It would be useful to compare racial disparities among
youthful offenders sentenced to LWOP with youthful offenders
sentenced to an indeterminate life term for first degree murder.
The parties, however, have not provided any such data.
8

PEOPLE v. HARDIN
Evans, J., dissenting
history of various bills relating to the youth offender parole
eligibility scheme includes discussion of these disparities.7
Although the Legislature has enacted various remedial
measures to address racism in our justice and carceral systems,
the question remains: why did the Legislature ignore the brain
science and disparate impact of the LWOP exclusion on young
people of color? The legislative history does not provide a
definitive answer to this question. The LWOP exclusion,
however, perpetuates severe racial disparities and, given its
historical context, bears the taint of prejudice against Black and
Brown youth.
III.
The LWOP Exclusion Perpetuates Racial Bias Against Black
and Brown Youth
The historical context of the LWOP exclusion illuminates
its origin and the motivating force behind it. “To determine the
validity of the enactment . . . it must be viewed in light of its
historical context and the conditions existing prior to its
enactment.” (Mulkey v. Reitman (1966) 64 Cal.2d 529, 534.
“[T]he judicial branch can rely on history and context on issues
of race to the same extent that courts have always relied on
history and context to analyze all other issues.” (State v.
Hawkins (Wn. 2022) 519 P.3d 182, 196.) “The way to stop
discrimination on the basis of race is to speak openly and
candidly on the subject of race, and to apply the Constitution
7
Notably, the Human Rights Watch submitted its report to
the Legislature in support of Senate Bill No. 394 (2017–2018
Reg. Sess.), which expanded the youth offender parole eligibility
scheme to include youthful offenders who were younger than 18
at the time of the offense and were sentenced to LWOP.
9

PEOPLE v. HARDIN
Evans, J., dissenting
with eyes open to the unfortunate effects of centuries of racial
discrimination.” (Schuette v. Coalition to Defend Affirmative
Action, Integration and Immigrant Rights and Fight for
Equality By Any Means Necessary (2014) 572 U.S. 291, 381 (dis.
opn. of Sotomayor, J.); see id. at pp. 380–381.
The historical context of the LWOP exclusion
demonstrates it was motivated — consciously or not — by racial
bias, including racial stereotypes and myth. The provision
excluded a group of youthful offenders based on their LWOP
sentence — a metric that is not reflective of their culpability or
their potential for rehabilitation, and a sentence with a
significant disparate impact on Black and Brown youth. The
Legislature enacted the LWOP exclusion against the backdrop
of the now-debunked “superpredator” myth. The myth distorted
policy makers’ collective understanding of youth as a mitigating
circumstance and instead treated it as an aggravating
circumstance and specifically demonized young Black males.
The LWOP exclusion tracks that myth.
In the mid-1990s, Princeton University Professor John J.
DiIulio, Jr., warned of an approaching violent crime surge
perpetrated by “tens of thousands of severely morally
impoverished” and “super crime-prone young males . . . on the
horizon.” (DiIulio, The Coming of the Super-Predators (Nov. 27,
1995
Washington
Examiner
examiner.com/magazine/1558817/the-coming-of-the-super-
predators/> [as of Mar. 4, 2024].) According to DiIulio, “[A]s long
as their youthful energies hold out, they will do what comes
‘naturally’: murder, rape, rob, assault, burglarize, deal deadly
drugs, and get high.” (Ibid.) Criminologist James Alan Fox
likewise warned that “ ‘[u]nless we act today, we’re going to have
a bloodbath when these kids grow up.’ ” (Mills et al., Juvenile
10

PEOPLE v. HARDIN
Evans, J., dissenting
Life Without Parole in Law and Practice: Chronicling the Rapid
Change Underway (2016) 65 Am. U. L.Rev. 535, 582.
The superpredator myth particularly focused on Black
youth. DiIulio claimed “[t]he surge in violent youth crime has
been most acute among black inner-city males” (DiIulio, supra,
Washington Examiner) and predicted that “as many as half of
[the] juvenile super-predators could be young black males.”
(DiIulio, My Black Crime Problem, and Ours (Spring 1996) 6
City J. 19 problem-and-ours-11773.html> [as of Mar. 4, 2024].) In
reversing a trial court’s denial of a motion to correct an illegal
sentence, the Connecticut Supreme Court explained, “[T]he
superpredator myth employed a particular tool of
dehumanization — portraying Black people as animals.
[Citation.] . . . The superpredator metaphor invoked images of
packs of teens prowling the streets. The news coverage in the
mid-1990s, which depicted ‘young Black males, showing them
[handcuffed] and shackled, held down by [the] police, or led into
courtrooms wearing orange jumpsuits’ . . . [citation] . . . left
little doubt that the ‘packs’ were Black teens.” (State v. Belcher
(Conn. 2022) 268 A.3d 616, 626, 627 (Belcher).) “Under its
influence, all too many Black and brown children were explicitly
or tacitly classified as ‘juvenile superpredators’ and treated as
irredeemable monsters.” (State v. Anderson (Wn. 2022) 516 P.3d
1213, 1227 (dis. opn. of González, C. J.).
The superpredator myth “turn[ed] upside down the
constitutional mandate of Roper and its progeny. By labeling a
juvenile as a superpredator, the very characteristics of youth
that should serve as mitigating factors in sentencing —
impulsivity, submission to peer pressure, deficient judgment —
are treated instead as aggravating factors justifying harsher
11

PEOPLE v. HARDIN
Evans, J., dissenting
punishment.” (Belcher, supra, 268 A.3d at p. 629.) “The
‘superpredator’ was constructed as the ultimate other, as
possessing all the characteristics that innocent young children
do not. . . . And because the ‘superpredator’ was the antithesis
of childhood, it was slyly constructed as young, Black, and
male.” (Nunn, The End of Adolescence: The Child as Other:
Race and Differential Treatment in the Juvenile Justice System
(2002) 51 DePaul L.Rev. 679, 713.
Empirical evidence quickly demonstrated that the
superpredator myth was baseless and false. Between 1994 and
2009, the juvenile crime rate dropped by half. (Southerland,
Youth Matters: The Need to Treat Children Like Children (2015
27 J. Civ. Rights & Economic Development 765, 777
(Southerland).) There was “a fifty-six percent decline in
homicides committed by juveniles from 1993 to 1998, and a
thirty percent decline in overall juvenile crime during the same
period.” (Barton, Reconciling the Burden: Parental Liability for
the Tortious Acts of Minors (2002) 51 Emory L.J. 877, 879.) In
California, “from 1980 to 2016, the arrest rate among those 17
or younger dropped by 84 percent.” (Lofstrom et al., Public
Policy Institute of Cal., New Insights into California Arrests:
Trends, Disparities, and County Differences (Dec. 2018) p. 3
california-arrests-trends-disparities-and-county-
differences.pdf> [as of Mar. 4, 2024].) “Moreover, the predictions
that youth of color would be primarily responsible for increases
in violent crime were proven false. The fluctuations in juvenile
homicide rates during the last two decades have not been
specific to any demographic groups, peaking in 1994 for both
African-American and white teenagers before falling through
12

PEOPLE v. HARDIN
Evans, J., dissenting
the year 2000.” (Southerland, supra, 27 J. Civ. Rights &
Economic Development at p. 777.
Despite the drop in juvenile crime and arrest rates, the
overall size of the incarcerated juvenile population grew in
response to the superpredator myth, disproportionately
impacting youth of color. “[F]our out of five youth newly held in
detention between 1983 and 1997 were juveniles of color. The
transfer of juveniles of color to adult court was equally, if not
more, disproportionate. . . . These numbers persist even today.”
(Moriearty & Carson, Cognitive Warfare on Young Black Males
in America (2012) 15 J. Gender, Race & Justice 281, 300–301,
fn. omitted.) “Ultimately, the sinister connections between race,
crime, and youth led to punitive sanctions, like life without
parole, for young offenders.” (Southerland, supra, 27 J. Civ.
Rights & Economic Development at p. 781.) As a result, Black
and Brown young people were sentenced to LWOP at extreme
and disparate rates in California.8
8
During the era of the superpredator myth, LWOP
sentences swelled in the United States — increasing by over 400
percent between 1992 and 2016. (Seeds, Life Sentences and
Perpetual Confinement (2021) Annual Review of Criminology,
at p. 288 annurev-criminol-061020-022154> [as of Mar. 4, 2024]; see
Annual Report, supra, at p. 50.) “[T]he overwhelming majority
of JLWOP sentences were imposed in the mid-1990s . . .
pursuant to policies adopted at the height of fear over the myth
of the superpredator. . . . A handful of jurisdictions [including
California] are responsible for imposing two-thirds of all
JLWOP sentences.” (Mills et al., supra, 65 Am. U. L.Rev. at pp.
560, 563.) Notably, prior to this proliferation in the use of the
sentence, LWOP operated as a sentence wherein a governor
(rather than a parole board) was tasked with granting parole,
13

PEOPLE v. HARDIN
Evans, J., dissenting
While empirical evidence demonstrated that the
superpredator myth was baseless and false, the myth “tapped
into and amplified racial stereotypes that date back to the
founding of our nation.” (Belcher, supra, 268 A.3d at p. 626.
The superpredator myth “relied heavily on ‘racist imagery and
stereotypes’ and harkened back to ‘historic representations of
African Americans [and other people of color] as violence-prone,
criminal and savage.” (Southerland, supra, 27 J. Civ. Rights &
Economic Development at p. 773.
The superpredator myth is one of many incarnations of
racism that have plagued our criminal and juvenile justice
systems since their inception. For example, once juvenile courts
became more accessible to Black youth in the mid-1900s, the
justice system shifted away from a rehabilitative objective and
became more punitive. (Lapp, Young Adults & Criminal
Jurisdiction (2019) 56 Am. Crim. L.Rev. 357, 386, citing Ward,
The Black Child-Savers: Racial Democracy and Juvenile Justice
(2012) p. 4.) “[T]he increase in disproportionate minority
contact with juvenile court overlaps with the decline of the
rehabilitative ideal and the rise of a more punitive juvenile
court.” (Lapp, at p. 386.) At the same time, politicians began
treating youth not as individuals in need of guidance, support,
and perhaps treatment — but as looming forces threatening to
destroy public safety. (See Henning, The Challenge of Race and
Crime in a Free Society: The Racial Divide in Fifty Years of
Juvenile Justice Reform, 86 Geo. Wash. L.Rev. 1604, 1618–1620
(Henning).) The superpredator myth was an apex of racial
whereas it is now treated as “ ‘the other death penalty’ ” — a
death-in-prison sentence. (Seeds, Life Sentences and Perpetual
Confinement, supra, Annual Review of Criminology at p. 302.
14

PEOPLE v. HARDIN
Evans, J., dissenting
prejudice in criminal and juvenile justice policy and catalyzed
“nearly every state in the country to step up the sentencing and
punishment of juveniles.” (Belcher, supra, 268 A.3d at p. 628;
see Henning, supra, 86 Geo. Wash. L.Rev. at p. 1620.) It also
coincided with a proliferation in the use of LWOP sentences —
particularly for Black and Brown youthful offenders. (See pp.
7–8, ante; see also Mills et al., The Phillips Black Project, No
Hope: Re-Examining Lifetime Sentences for Juvenile Offenders
(2015
p.
10
55bd511ce4b0830374d25948/t/5600cc20e4b0f36b5caabe8a/144
2892832535/JLWOP+2.pdf> [as of Mar. 4, 2024].) “Starting in
1992, the height of the superpredator panic, a black juvenile
arrested for homicide has been twice as likely to be sentenced to
LWOP as his white counterpart.” (Id. at p. 9.
In California, the superpredator myth animated
legislation underpinning LWOP sentences for youthful
offenders. For example, as a direct result of the superpredator
myth, voters passed Proposition 21 in 2000. (See de Vries, Guilt
By Association: Proposition 21’s Gang Conspiracy Law Will
Increase Youth Violence in California (2002) 37 U.S.F. L.Rev.
191, 197; see also Assem. Com. on Public Safety, Analysis of Sen.
Bill No. 1391 (2017–2018 Reg. Sess.) as amended May 25, 2018,
pp. 4–5 [acknowledging the shift towards punitive treatment of
youth “was fueled by media’s portrayal of youth as ‘super-
predators,’ consistent with the era’s tough on crime attitude. . . .
In 2000, Proposition 21 again dramatically shifted California’s
criminal justice policies”].) Proposition 21, among other things,
created the gang-murder special circumstance and allowed —
and sometimes mandated — charging children as young as 14
years old directly in adult criminal court. In advocating for the
initiative’s passage, proponents adopted the language of the
15

PEOPLE v. HARDIN
Evans, J., dissenting
superpredator myth, perpetuating racial prejudice and
capitalizing on dire “predictions of a juvenile crime wave.”
(Voter Information Guide, Primary Elec. (Mar. 7, 2000),
argument in favor of Prop. 21, p. 48.) Contrary to the ballot
material claims, juvenile crime had, in fact, been declining since
1993. (See pp. 10–11, ante.
Even after the superpredator myth was exposed as false
and the system began to refocus on rehabilitation, Black youth
continue to disproportionately “experience the devastating
effects of legislative and policy shifts that undermined the core
rehabilitative philosophy of American juvenile courts in the
wake of the superpredator myth.” (Henning, supra, 86 Geo.
Wash. L.Rev. at p. 1622.) They continue to be viewed as older
and more culpable than White youth (id. at p. 1627) and, as
noted above, have experienced the disproportionate imposition
of LWOP sentences. Passed in the wake of the superpredator
myth, the LWOP exclusion at issue here is part of this legacy of
dehumanization and harm against Black and Brown youth.
*
*
*
The LWOP exclusion perpetuates extreme racial
disparities in our criminal and juvenile justice systems. The
historical and invidious discrimination against Black and
Brown youth in criminal and juvenile justice policy provides
important context when analyzing whether the exclusion has a
rational basis. The LWOP exclusion is particularly striking
since the Legislature otherwise recognizes that youthful
offenders as a class have diminished moral culpability.
Particularly given the context of the LWOP exclusion’s
enactment and its discriminatory impact, the statutory
classification must serve the Legislature’s expressed purpose —
16

PEOPLE v. HARDIN
Evans, J., dissenting
to provide youthful offenders with a meaningful opportunity to
obtain release upon a showing of maturation and rehabilitation.
In light of that purpose and lack of any difference in the brain
development or capacity for rehabilitation between excluded
and non-excluded young people, the LWOP exclusion is
irrational.
This case calls on us to correct a legacy of casting Black
and Brown youth as predatory, remorseless, and irredeemable,
older than they are, and treated differently from White youth.
The equal protection clause demands that lawmakers extend
the mercy, dignity and grace embodied in the youthful offender
parole eligibility scheme to all youth — regardless of the crimes
of which they were convicted. As a class, they all are less
morally culpable and are more likely to become rehabilitated
based on accepted scientific evidence regarding adolescent brain
development. The majority has avoided this heed with the
hollow promise of another day. I urge the Legislature to correct
itself by ridding section 3051 of the LWOP exclusion and
extending youth offender parole eligibility to all individuals who
were convicted in their youth.
I respectfully dissent.
EVANS, J.
17

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Hardin

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 84 Cal.App.5th 273
Review Granted (unpublished)
Rehearing Granted

Opinion No. S277487
Date Filed: March 4, 2024

Court: Superior
County: Los Angeles
Judge: Juan Carlos Dominguez

Counsel:
William L. Heyman, under appointment by the Court of Appeal;
Munger, Tolles & Olson, William D. Temko, Sara A. McDermott, Adeel
Mohammadi; USC Post-Conviction Justice Project, Heidi Rummel,
Michael Parente and Danielle A. Wilkins for Defendant and Appellant.
Complex Appellate Litigation Group and Greg Wolff for Human Rights
Watch, State Senator Loni Hancock (Ret.), the Anti-Recidivism
Coalition, the LWOP Alliance Group at Calipatria State Prison and the
National Life Without Parole Leadership Council as Amici Curiae on
behalf of Defendant and Appellant.
Law Office of B.C. McComas, Brian C. McComas; and Eric Weaver for
the Santa Clara County Independent Defense Counsel Office as
Amicus Curiae on behalf of Defendant and Appellant.
Cooley, Kathleen R. Hartnett, Darina Shtrakhman, Prianka Misra,
Ariana E. Bustos, Adam S. Gershenson, Matt K. Nguyen; and Marsha
L. Levick for Neuroscience, Psychology and Juvenile Justice Scholars,

Juvenile Law Center, the American Academy of Pediatric
Neuropsychology, the Pacific Juvenile Defender Center and the
Sentencing Project as Amici Curiae on behalf of Defendant and
Appellant.
Kim Saltz; Avram Frey; Summer Lacey; and Diana Garrido for The
ACLU, The ACLU of Northern California, The ACLU of Southern
California, The California Public Defenders Association and The
Contra Costa Public Defender Office as Amici Curiae on behalf of
Defendant and Appellant.
Law Office of Michael Laurence and Michael Laurence for Catherine
M. Grosso as Amicus Curiae on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Michael J. Mongan, State Solicitor
General, Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Helen H. Hong, Deputy
State Solicitor General, Noah P. Hill, Idan Ivri and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
Jason Anderson, District Attorney (San Bernardino), and Brent J.
Schultze, Deputy District Attorney, for the District Attorney of San
Bernardino County as Amicus Curiae on behalf of Plaintiff and
Respondent.
Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice
Legal Foundation as Amicus Curiae on behalf of Plaintiff and
Respondent.
Jeffrey F. Rosen, District Attorney (Santa Clara), and David R. Boyd,
Deputy District Attorney, for the District Attorney of Santa Clara
County as Amicus Curiae on behalf of Plaintiff and Respondent.
Gibson, Dunn & Crutcher, Eric D. Vandevelde, Jamila D. MacEbong,
Patrick J. Fuster, Benjamin W. Holston, Jenna Bernard, Maya M.
Halthore and Allison P. Miller for Prosecutors Alliance of California as
Amicus Curiae.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Heidi Rummel
USC Post-Conviction Justice Project
699 Exposition Boulevard, University Park
Los Angeles, CA 90089
(213) 740-2865
Sara A. McDermott
Munger, Tolles & Olson LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071
(213) 683-9556
Helen H. Hong
Deputy State Solicitor General
600 West Broadway, 18th Floor
San Diego, CA 92101
(619) 738-9693

TriCoast Builders, Inc. v. Fonnegra

admin — Tue, 27 Feb 2024 00:12:32 +0000

IN THE SUPREME COURT OF
CALIFORNIA
TRICOAST BUILDERS, INC.,
Plaintiff and Appellant,
v.
NATHANIEL FONNEGRA,
Defendant and Respondent.
S273368
Second Appellate District, Division Two
B303300
Los Angeles County Superior Court
PC056615
February 26, 2024
Justice Kruger authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Liu, Groban, Jenkins,
and Evans concurred.

TRICOAST BUILDERS, INC. v. FONNEGRA
S273368
Opinion of the Court by Kruger, J.
The California Constitution provides that all civil litigants
have the right to trial by jury, but they may waive that right in
a manner prescribed by statute. (Cal. Const., art. I, § 16.) The
statute implementing this provision, Code of Civil Procedure
section 631 (section 631), sets forth various acts and omissions
that constitute jury waiver, including failing to make a timely
jury demand and failing to timely deposit a jury fee in
accordance with statutory requirements. (§ 631, subd. (f).
Waiver does not categorically foreclose trial by jury; a litigant
that has waived jury trial may seek relief from the waiver. The
trial court has discretion whether to grant relief, on such terms
as may be just. (§ 631, subd. (g) (section 631(g)).
This case raises two questions about the adjudication of
requests for relief from jury waiver under section 631(g). The
first question concerns proceedings in the trial court: Must a
trial court always grant relief from a jury waiver if proceeding
with a jury would not cause hardship to other parties or to the
trial court? We conclude that the answer is no; a trial court’s
discretion is not so constrained. The presence or absence of
hardship is always a primary consideration, and it is often
dispositive in cases where the litigant has given timely notice
that it desires a jury trial and seeks relief from mere technical
statutory waiver, such as failure to post the required jury fee at
the correct time or in the correct amount. But a request for relief
from jury waiver always calls for consideration of multiple
1

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
factors in addition to hardship, including the timeliness of the
request and the reasons supporting the request.
The second question concerns proceedings on appeal: If a
litigant challenges the denial of relief from jury waiver for the
first time on appeal of the judgment of the trial court, must the
litigant show actual prejudice to obtain reversal, or will
prejudice be presumed? We conclude that, where the
constitutional right of jury trial has been validly waived,
prejudice from the denial of section 631(g) relief will not be
presumed but must be shown.
In this case, plaintiff TriCoast Builders, Inc. (TriCoast
waived jury trial, but unsuccessfully sought relief from waiver
when its opponent dropped his jury demand on the day of trial.
After a bench trial, the court entered judgment against
TriCoast. Now appealing that adverse judgment, TriCoast’s
sole claim of prejudice concerns the efforts it wasted in
preparing for a jury trial that had been requested, then
belatedly waived, by the other side. These are, however, costs
that can never be recouped, even if TriCoast were now granted
the do-over it seeks, and that have nothing to do with the
fairness of the trial TriCoast received. Because TriCoast has
failed to establish the prejudice necessary to justify reversing
the trial court’s judgment, we affirm the judgment of the Court
of Appeal, which reached the same conclusion on this issue.
I.
The issues in this case arise from litigation between
TriCoast, a general building contractor, and homeowner
Nathaniel Fonnegra. Fonnegra hired TriCoast to handle repairs
on his house after it was damaged by a fire. Unhappy with the
quality of TriCoast’s work, Fonnegra terminated the contract
2

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
and hired a new contractor. TriCoast sued Fonnegra for
damages and to enforce a mechanics lien.1
Pretrial proceedings in the case spanned four years,
during which Fonnegra demanded a jury trial. (§ 631, subd. (b).
TriCoast did not demand a jury or post fees, and thus waived its
right to a jury trial. (Id., subd. (f)(5).) TriCoast nonetheless
prepared for a jury trial because of Fonnegra’s demand.
After years of pretrial proceedings, the case was set for a
jury trial to begin on September 23, 2019. The minute order for
that day’s proceedings stated that the “NATURE OF
PROCEEDINGS” would be a “JURY TRIAL.” On the morning
of September 23, however, Fonnegra informed the court that he
was “willing to waive a jury.” TriCoast immediately objected,
stating that it was “going to post fees today for a jury trial. We’re
not waiving. We prepared for a jury trial, we’d like a jury trial.”
Fonnegra responded that TriCoast had already waived its jury
right by failing to timely post fees. The trial court agreed.
Though TriCoast had offered to post fees that day, the court
concluded this offer to post fees came too late, “[s]o it’s going to
be a court trial.”
TriCoast requested a jury trial notwithstanding its earlier
waiver. TriCoast argued that it had prepared for a jury trial
given Fonnegra’s demand, that it had a right to a jury trial, and
that Fonnegra’s decision to revoke his jury demand on the
1
TriCoast also sued additional parties, including
Fonnegra’s new contractor, but by the time of trial the litigation
with all of the other defendants had been resolved through
settlement, demurrer, or summary judgment. (TriCoast
Builders, Inc. v. Fonnegra (2022) 74 Cal.App.5th 239, 243 & fn. 2
(TriCoast).
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
morning of trial was “unfair, to put it mildly.” The trial court
denied this request for relief from jury waiver, explaining:
“When the fees haven’t been paid, and you haven’t paid them,
the party that did pay them has waived the jury trial, so that’s
it.” In its order denying relief, the trial court simply noted it had
denied TriCoast’s oral request for relief, “find[ing] that
Plaintiff[,] not having paid jury fees, has waived trial by jury.”
The trial court noted that TriCoast could challenge the
ruling by filing a petition for an extraordinary writ if it wished,
but TriCoast did not do so. Instead, TriCoast, Fonnegra, and
the court proceeded with a bench trial. After a seven-day trial,
the court ruled in favor of Fonnegra.
TriCoast filed a motion for a new trial. In the motion,
TriCoast argued that the court abused its discretion by denying
TriCoast’s request for relief from waiver of its jury right.
TriCoast stated that it had “expended considerable resources in”
preparing for a jury, including “tailor[ing] its opening
statement, exhibits, witnesses, and presentation for a jury.” It
further noted that “[n]either the court nor Fonnegra articulated
any prejudice as a result of [TriCoast’s] request for a jury trial.”
TriCoast cited case law indicating that, in the absence of
prejudice to the court or the opposing party, the court should
have granted the request to proceed with trial by jury. The trial
court denied TriCoast’s motion, again citing TriCoast’s failure
to timely pay jury fees.
TriCoast appealed, arguing that the trial court committed
reversible error when it denied TriCoast’s motion for relief from
waiver of a jury trial. The Court of Appeal rejected TriCoast’s
argument in a divided decision. (TriCoast, supra, 74
Cal.App.5th at p. 243.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
The majority began by faulting TriCoast for challenging
the trial court’s denial of relief only after the bench trial had
already concluded and judgment was rendered, rather than
seeking interlocutory review of that denial by filing a petition
for writ of mandate. Having raised the issue by way of
postjudgment appeal, the majority concluded, TriCoast was
required to establish prejudice resulting from the bench trial,
which it could not do. (TriCoast, supra, 74 Cal.App.5th at
p. 248.
In so holding, the majority agreed with several appellate
opinions that a party that “fails to seek writ review of an order
denying relief from jury waiver under section 631 must
demonstrate actual prejudice” when challenging that denial
postjudgment. (TriCoast, supra, 74 Cal.App.5th at p. 245, citing
Byram v. Superior Court (1977) 74 Cal.App.3d 648, 653 (Byram);
McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363
(McIntosh); Gann v. Williams Brothers Realty, Inc. (1991) 231
Cal.App.3d 1698, 1704 (Gann).) The majority acknowledged
that the Court of Appeal in Mackovska v. Viewcrest Road
Properties LLC (2019) 40 Cal.App.5th 1, 12–17 (Mackovska) had
reached a contrary conclusion, rejecting an actual prejudice
requirement as inconsistent with courts’ obligation to protect
the jury right. The majority criticized Mackovska for failing to
appreciate the difference between protecting the jury right in
the first instance and permitting jury trial after the right has
been waived. (TriCoast, at p. 246.) The majority also noted that
Mackovska was distinguishable because it concerned a timely
request for relief following an apparently inadvertent waiver,
whereas TriCoast made a belated request following an
5

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
intentional waiver.2 (TriCoast, at pp. 246–248.) Under the
circumstances, the majority held, TriCoast was not entitled to
reversal of the judgment on appeal, even if it could show that
the trial court had abused its discretion in denying TriCoast’s
request for relief from waiver.
Next, and evidently in the alternative, the Court of Appeal
majority held that the trial court did not, in fact, abuse its
discretion. (TriCoast, supra, 74 Cal.App.5th at pp. 248–250.
The majority reasoned that the request for relief was untimely
because TriCoast did not demand a jury or offer to post fees until
the day of trial. (Id. at p. 248.) The majority acknowledged
TriCoast’s argument that granting relief would not have caused
any harm, and it recognized that other appellate courts had
stated that “ ‘a motion to be relieved of a jury waiver should be
granted unless, and except, where granting such a motion would
work serious hardship to the objecting party.’ ” (Id. at p. 249,
quoting Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d
806, 809 (Boal).) But the majority distinguished these cases as
involving situations where the initial jury waiver was the result
of a mistake — for example, where the party mistakenly failed
to post jury fees after giving notice it desired jury trial.
2
As explained below, courts generally use the word
“waiver” to refer to the intentional relinquishment of a known
right or privilege — making the term “inadvertent waiver” seem
like something of a contradiction in terms. (See post, p. 16.) But
under section 631 both intentional and unintentional
relinquishments of the jury trial right are deemed “waivers.”
Accordingly, courts have used the term “inadvertent waiver” in
this context to refer to a mistaken failure to comply with
statutory requirements for demanding a jury under section 631,
resulting in an unintentional relinquishment of the right to a
jury trial.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
(TriCoast, at pp. 249–250.) In this case, it was undisputed that
TriCoast’s jury waiver had been intentional. (Id. at p. 250.) The
majority went on to opine that, even in cases involving mistaken
or inadvertent jury waivers, hardship is not necessarily
dispositive; rather, “[p]rejudice to the parties is just one of
several factors the trial court may consider” in exercising its
discretion under section 631(g). (TriCoast, at p. 250, citing
Gann, supra, 231 Cal.App.3d at p. 1704.
Justice Ashmann-Gerst dissented. (TriCoast, supra, 74
Cal.App.5th at p. 251 (dis. opn. of Ashmann-Gerst, J.).) She
would have held that it was an abuse of discretion to deny
TriCoast’s request for relief from jury waiver in the absence of a
showing that relief would cause hardship to the other side. She
would also have held, consistent with Mackovska, that the error
warranted reversal of the judgment on appeal, regardless of
whether TriCoast could show that the error caused it actual
prejudice. (Id. at pp. 254–255 (dis. opn. of Ashmann-Gerst, J.).
We granted review.
II.
A.
Under the California Constitution, “[t]rial by jury is an
inviolate right and shall be secured to all” in civil as well as
criminal cases. (Cal. Const., art. I, § 16.) But like most
constitutional rights, the right to jury trial can be waived. In
criminal cases, waiver requires “the consent of both parties
expressed in open court by the defendant and the defendant’s
counsel.” (Ibid.) In civil cases, by contrast, the right may be
waived “by the consent of the parties expressed as prescribed by
statute.” (Ibid.
7

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
The statute in question, section 631, traces back to
California’s earliest civil procedure statute, the 1851 Practice
Act (Stats. 1851, ch. 5, § 179, p. 78), and was recodified in the
newly enacted Code of Civil Procedure in 1872 (1872 Code Civ.
Proc., former § 631). In these early iterations, the statute
prescribed limited modes for expressing consent to jury waiver:
A litigant could waive jury trial either by failing to appear at
trial or else by written or recorded oral consent. (See, e.g., Platt
v. Havens (1897) 119 Cal. 244, 247–248 (per curiam), citing
former § 631.)3 In 1915, the Legislature added two additional
methods of waiver: failing to timely announce that a jury is
required and failing to deposit jury fees. (Stats. 1915, ch. 403,
§ 1, pp. 649–650.) Since then, the statutory grounds for civil
jury waiver have remained largely unchanged, with the
3
The statute also offered the possibility of waiver through
other means prescribed by the court, but an early decision of this
court made clear that the Legislature alone has the power to set
jury waiver rules in civil cases. (Exline v. Smith (1855) 5 Cal.
112, 112–113; see Grafton Partners v. Superior Court (2005) 36
Cal.4th 944, 952 (Grafton Partners).) The Legislature would
later omit the provision from the statute. (Stats. 1915, ch. 403,
§ 1, pp. 649–650.
Notwithstanding Exline, this court repeatedly upheld
court rules requiring prepayment of jury fees as a reasonable
condition on the invocation of the jury right. (Conneau v. Geis
(1887) 73 Cal. 176, 177 [“A rule requiring the fee to be paid in
advance is a reasonable precaution to prevent the jurors from
being defrauded by unscrupulous parties, and to prevent the
demand of a jury being used as a pretext to obtain continuances,
and thus trifle with justice”]; accord, Napthaly v. Rovegno (1900
130 Cal. 639, 640–641; Adams v. Crawford (1897) 116 Cal. 495,
497; see also People v. Metropolitan Surety Co. (1912) 164 Cal.
174, 176–179 [discussing cases].
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
exception of the requirements governing the payment of jury
fees — a subject to which much of section 631 is now directed.
The current version of section 631 provides that a party
may waive the right to a jury trial in any one of several ways,
including, as relevant here, “failing to announce that a jury is
required” at or near the time the case is first set for trial (§ 631,
subd. (f)(4)), or by failing to timely pay a $150 nonrefundable
jury fee, typically on or before the date scheduled for the initial
case management conference (id., subd. (f)(5); see id., subds. (b
[setting the amount], (c) [prescribing the time for paying the jury
fee, and setting out exceptions for unlawful detainer actions and
certain actions pending as of June 28, 2012]).4 At least one party
on each side of the dispute must timely post the jury fee in order
to preserve the jury right for that “side of the case.” (§ 631,
subds. (b) [“Payment of the fee by a party on one side of the case
shall not relieve parties on the other side of the case from waiver
pursuant to subdivision (f)”], (f)(5) [failure to pay the jury fee
constitutes waiver “unless another party on the same side of the
case has paid that fee”].
Waiver in the manner prescribed by section 631 is not
necessarily the end of the line. Following section 631’s
enactment, courts consistently held that a trial court has the
discretion to proceed with a jury trial even though the jury right
had been waived. (Brown v. Brown (1930) 104 Cal.App. 480, 488
[considering the point “well settled”]; see also, e.g., Dickey v.
Kuhn (1932) 125 Cal.App. 68, 72 [“[N]otwithstanding a jury has
4
Although the statute requires the payment of the jury fee
in all cases, our cases have made clear that the requirement does
not apply to indigent litigants. (See Martin v. Superior Court
(1917) 176 Cal. 289, 290–291.
9

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
been waived in the statutory manner, it is within the discretion
of the trial court to disregard the waiver and try the case by a
jury”]; Byram, supra, 74 Cal.App.3d at pp. 651–652 [collecting
additional cases].) In 1933, the Legislature amended section
631 to make that authority explicit. (Stats. 1933, ch. 744, § 104,
p. 1875.) Today, that statutory authorization appears in section
631(g), which states in full: “The court may, in its discretion
upon just terms, allow a trial by jury although there may have
been a waiver of a trial by jury.”
B.
The first question for our consideration concerns the
nature of a court’s discretion to allow a jury trial under section
631(g) notwithstanding a party’s waiver of the jury right.
TriCoast does not dispute that it had waived its jury right; at no
point in four years of pretrial proceedings did TriCoast ask for a
jury, nor did TriCoast deposit the required jury fee. TriCoast
argues, however, that the trial court in this case erred when it
refused to allow TriCoast to proceed with the jury trial that
Fonnegra had demanded, then waived on the day of trial.
TriCoast relies on a line of cases stating that, in cases of
inadvertent waiver, it is an abuse of discretion to deny relief
from jury waiver in the absence of any showing that proceeding
with a jury trial would have harmed the other side. Disagreeing,
Fonnegra relies on a different line of cases identifying additional
factors trial courts should consider in deciding whether to grant
relief from jury waiver.
We agree with Fonnegra that section 631(g) does not limit
a trial court’s discretion in the manner TriCoast suggests.
Certainly the text does not state that a court must grant relief
from waiver in the absence of a showing of hardship. It instead
10

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
states only that the court may grant relief “in its discretion upon
just terms.” (§ 631(g).) This open-ended grant of discretion does
not direct courts to narrow their focus to any single factor.
Rather, it suggests that courts should consider all factors
relevant to whether granting relief in the particular situation
before them would be “just.” (Ibid.
Considered as a whole, the body of appellate case law
addressing section 631(g) reveals a considerable degree of
consensus about the relevant considerations. Among these, the
primary consideration is indeed whether granting relief from
waiver would result in any hardship to other parties or to the
court, such as delay in rescheduling the trial for a jury or
inconvenience to witnesses. But courts have also regularly
considered other factors, including the timeliness of the request;
whether the requester is willing to comply with applicable
requirements for payment of jury fees; and the reasons
supporting the request. (Gonzales v. Nork (1978) 20 Cal.3d 500,
508, 511 (Gonzales); see Gann, supra, 231 Cal.App.3d at p. 1704;
Boal, supra, 165 Cal.App.3d at p. 809; McIntosh, supra, 151
Cal.App.3d at p. 363; Simmons v. Prudential Ins. Co. (1981) 123
Cal.App.3d 833, 838–839 (Simmons); Bishop v. Anderson (1980
101 Cal.App.3d 821, 824; March v. Pettis (1977) 66 Cal.App.3d
473, 480.
This court’s decision in Gonzales is illustrative. There, one
of two defendants had initially waived the jury right but later
asked for relief from that waiver when its codefendant waived
jury midtrial. We noted that despite earlier opportunities to
seek such relief, the defendant sought relief only after he had
begun to argue issues to the judge, sitting as trier of fact. The
timing, this court noted, gave “rise to the suspicion that the
motion signified merely that [the defendant], after arguing
11

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
before the judge, had changed his mind about the tactical
advantages of jury trial vis-à-vis court trial.” (Gonzales, supra,
20 Cal.3d at p. 503.) For that reason, as well as because of
concerns relating to inconvenience to the witnesses and the
jurors, we concluded the trial court had not abused its discretion
in denying the defendant’s request for relief from waiver. (See
id. at p. 511.)5
Several Court of Appeal cases are to similar effect. The
cases illustrate that the presence or absence of hardship is not
always dispositive when weighed against other relevant factors,
particularly the strength or weakness of the reasons supporting
the request. The cases hold that a trial court reviewing a motion
for relief from waiver may consider whether the motion for relief
simply reflects a belated change of heart about trial tactics —
or, worse, is being used as a “pretext to obtain continuances and
thus trifle with justice” — and may deny the motion for that
reason alone. (Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476
(Cowlin), citing Conneau v. Geis, supra, 73 Cal. at p. 177; accord,
Cloud v. Market Street Ry. Co. (1946) 74 Cal.App.2d 92, 103
[denying relief where the only reason for the request appeared
to be a change in trial tactics]; Day v. Rosenthal (1985) 170
Cal.App.3d 1125, 1177 [“It is well settled that a simple change
of mind is not enough to justify relief from a jury waiver,” and it
5
TriCoast argues that Gonzales illustrates a different
point: that willingly participating in proceedings before a judge
will ordinarily constitute a waiver of the jury right. This is true.
(Gonzales, supra, 20 Cal.3d at pp. 508–509.) But the analysis in
Gonzales was not limited to this proposition. Rather, in
determining whether relief from jury waiver was appropriate,
we considered the timing of the request for relief and the
motivations behind the request, as well as the hardship and
inconvenience to witnesses and jurors.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
is “not an abuse of discretion for the trial court to deny relief on
that basis, alone”]; see also 7 Witkin, Cal. Procedure (6th ed.
2021) Trial, § 98, p. 105 [“Courts have refused to grant motions
for relief where the motion appears to be a trial tactic”].
TriCoast relies on a line of appellate cases stating that a
trial court should grant a motion to be relieved of a jury waiver
“ ‘unless, and except, where granting such a motion would work
serious hardship to the objecting party.’ ” (Mackovska, supra,
40 Cal.App.5th at p. 10, quoting Boal, supra, 165 Cal.App.3d at
p. 809, and citing Gann, supra, 231 Cal.App.3d at p. 1703.) This
categorical-sounding statement of the rule might seem flatly
inconsistent with the multifactor approach taken in the cases
we have already described. But, while some of TriCoast’s cases
state the rule broadly, others contain a narrower statement of
the same idea, making clear that hardship is not, in fact, the
only consideration in play. (E.g., Gann, at p. 1704 [“The court
abuses its discretion in denying relief where there has been no
prejudice to the other party or to the court from an inadvertent
waiver” (italics added)].
Virtually all of TriCoast’s cases involve variations on the
same basic fact pattern: A party gave timely notice that it
desired a jury trial but was found to have waived jury trial
through failure to timely post the correct amount of jury fees or
through another form of technical noncompliance with jury
demand procedure, and so sought relief from waiver under
section 631(g). (See Byram, supra, 74 Cal.App.3d at p. 650
[party requested a jury “throughout the proceedings,” but
inadvertently waived the right when his lawyer’s secretary
failed to post jury fees 14 days in advance]; Boal, supra, 165
Cal.App.3d at p. 809 [new attorney accidentally marked the
wrong form after consistent series of prior jury trial demands];
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Opinion of the Court by Kruger, J.
Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808,
809 [party demanded a jury in a case management statement
but failed to timely post fees]; Massie v. AAR Western Skyways,
Inc. (1992) 4 Cal.App.4th 405, 412 [party demanded jury trial by
memorandum but failed to timely post jury fees due to counsel’s
unfamiliarity with local court rule]; Wharton v. Superior Court
(1991) 231 Cal.App.3d 100, 102, 104 [mistaken waiver due to
confusion about the requisite fees amount, despite an earlier
jury demand]; Winston v. Superior Court (1987) 196 Cal.App.3d
600, 602 [party demanded a jury but failed to timely post jury
fees due to conflicting statutory deadlines].)6
6
Two of the cases that TriCoast cites, Bishop and Simmons,
involve somewhat different fact patterns. The parties seeking
relief from waiver there had expressly waived their right to a
jury trial in their at-issue memorandum but later invoked a
then-available statutory mechanism for picking up a jury
invocation after their opponents dropped their jury demands. In
both cases, the courts concluded that the parties were entitled
to relief, notwithstanding case law precluding “pick up” after an
express waiver of jury trial. (See Bishop, supra, 101 Cal.App.3d
at p. 823; Simmons, supra, 123 Cal.App.3d at pp. 836, 837–838;
see also Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893,
899 [describing the statutory “ ‘pick[] up’ ” mechanism, which
“permitt[ed] a party to rely upon another party’s demand and
deposit of fees”].) The statutory “pick up” procedure that formed
the backdrop to these cases no longer exists. (See Stats. 2002,
ch. 806, § 15, p. 5146.) To the extent the reasoning of these
cases suggests that a trial court is always required to grant
relief from an express jury waiver if doing so would not cause
hardship, we conclude the cases are incorrect and disapprove
them.
TriCoast also cites a third case, Mackovska. In that case,
there appeared to be some uncertainty about whether the
appellant had lost the jury right through mere technical
14

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
To the extent that some of these cases contain language
suggesting hardship is the only relevant consideration under
section 631(g), that suggestion is incorrect, and we disapprove
it. (See fn. 6, ante.) But we cast no doubt on the actual holdings
of the cases, which are consistent with an understanding that
the section 631(g) inquiry depends on consideration of multiple
factors and not just on considerations of hardship standing
alone. As we read them, the cases stand for this modest but
important proposition: When a party that has timely given
notice that it desires trial by jury then loses the jury right
because of technical noncompliance with some element of
statutory procedure — such as failure to pay jury fees at the
right time or in the right amount — lack of hardship to the other
parties or the court is generally controlling, absent other factors
that weigh against relief.
Stated as a general rule, the principle underlying these
cases is sound. When section 631 was first enacted, the sole
bases for finding waiver of the civil jury right were
nonappearance at trial and express consent to waiver. Over the
course of the last century, however, the statutory bases for
finding jury waiver have expanded well beyond what we would
statutory waiver. The Court of Appeal evidently believed he
had, noting that he had requested a jury trial in his case
management statement but failed to post jury fees. (Mackovska,
supra, 40 Cal.App.5th at pp. 6–7 & fn. 2.) But the court also
acknowledged the trial court’s assertion that appellant had
stipulated to a court trial, even as the appellate court doubted
the accuracy of the assertion. (Id. at pp. 8, 11, fn. 6.) Regardless
of which view of the facts was ultimately correct, the Mackovska
court was incorrect to state categorically that trial courts abuse
their discretion whenever they deny relief from waiver without
a showing of hardship to the opposing party.
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TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
ordinarily term “waiver” of a constitutional right, to encompass
noncompliance with various procedural requirements for
making jury demands, including requirements to post jury fees
at the correct time or in the correct amount. (Cf. Rockefeller
Technology Investments (Asia) VII v. Changzhou SinoType
Technology Co., Ltd. (2020) 9 Cal.5th 125, 140 [generally, waiver
is “ ‘voluntary, knowing, and intelligently made,’ ” or the
“ ‘ “intentional relinquishment or abandonment of a known right
or privilege” ’ ”].) This expansion has increased the possibility
that the jury right, though otherwise timely invoked, might
nonetheless be lost through mere technical statutory error —
what courts have sometimes loosely described as “inadvertent”
waiver (Gann, supra, 231 Cal.App.3d at p. 1704).
Section 631(g) alleviates the harshness of this result by
allowing courts to forgive a party’s technical noncompliance
when the party has fulfilled the core objective of the statute,
which is to give timely notice that a jury is demanded. At least
in the absence of countervailing factors, courts have generally
granted such forgiveness where to do so would not result in
hardship. This is much the same approach courts take in other
instances involving technical noncompliance with statutory
requirements. (See, e.g., Assembly v. Deukmejian (1982) 30
Cal.3d 638, 652 [applying doctrine of substantial compliance].
It is also consistent with the courts’ general policy of resolving
doubts about section 631 waiver “ ‘in favor of according to a
litigant a jury trial,’ ” in keeping with the constitutional
guarantee. (Grafton Partners, supra, 36 Cal.4th at p. 958.
But these cases involving mere technical statutory waiver
raise different considerations from cases in which a party at first
opted against invoking the jury right, then later seeks relief
from the consequences of that choice. And in all events, in every
16

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Opinion of the Court by Kruger, J.
case the trial court properly considers all relevant factors in
deciding whether it should exercise its discretion to grant relief
to a litigant. As Gonzales and other cases indicate, whether
relief would cause hardship to other parties or the court is
always a primary factor, but it is not the only factor. Without
attempting any exhaustive list of relevant considerations, a
court may consider, in addition to hardship, the timeliness of the
request; the party’s willingness to comply with applicable jury
fee obligations; and the party’s reasons for seeking the relief.
To this point, we agree with the Court of Appeal in this
case, which held that the trial court was not required to grant
TriCoast’s request for relief from waiver once it was established
that no harm would result from proceeding with a jury trial.
It is nonetheless unclear whether the trial court in this
case exercised its discretion in a manner consistent with the law
as we have described it. TriCoast never communicated a desire
for jury trial before it made its oral request for relief from
waiver, and TriCoast does not dispute that its decision not to
invoke the jury right was an intentional one. But its request for
relief from waiver was not, as far as the record reveals, driven
by gamesmanship or desire for tactical advantage, as in
Gonzales. Rather, though TriCoast did not wish for a jury trial,
Fonnegra had demanded one, so TriCoast had prepared its case
accordingly. When Fonnegra decided to waive the jury on the
morning of trial, TriCoast sought relief that would enable it to
reinstate the jury trial so that it could present the case in the
manner it had prepared for.
So far as the record in this case reveals, the trial court
denied TriCoast’s motion simply because TriCoast had failed to
make a deposit of jury fees. But under section 631, a party’s
17

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
failure to deposit jury fees simply means jury trial was waived.
(§ 631, subds. (b), (f)(5).) It is not a sufficient reason for denying
relief from waiver. Nor was there any concern that TriCoast
was unable or unwilling to pay the required fees; in making its
request for relief from waiver, TriCoast offered to post fees that
very day.
The Court of Appeal opined that the trial court properly
denied TriCoast’s request as untimely because it was made on
the first day scheduled for trial. (TriCoast, supra, 74
Cal.App.5th at pp. 248–249.) As a general matter, it is of course
true that a party cannot wait until the morning of trial to invoke
its right to a jury. But context is important here. As TriCoast
made clear to the trial court, it was asking for relief from waiver
because it had prepared for a jury trial demanded by the other
side for some four years, and then was told, on the morning of
trial, that there would be no jury after all. TriCoast made this
request on the day of trial because it was not until then that its
opponent waived jury trial. TriCoast’s request for relief from
waiver, based as it was on Fonnegra’s 11th-hour decision to
waive, simply could not have been made earlier than it was.
Beyond the timing issue, we can only speculate whether
the trial court had other, unstated reasons for ruling as it did,
and if so, what they might be. Ultimately it is unnecessary for
us to decide, since, as we will explain in a moment, reversal is
not warranted in any event. We do, however, offer a few
observations for the benefit of courts and litigants who may find
themselves in a similar position in the future. Under present
law, each side must make its own timely jury demand and pay
its own fees, and there is nothing to stop a party that has timely
demanded a jury trial from dropping that demand on the eve of
trial, or even during the trial itself. (§ 631, subds. (b) [“Payment
18

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
of the fee by a party on one side of the case shall not relieve
parties on the other side of the case from waiver pursuant to
subdivision (f)”], (f)(2), (3) [a party is free to waive jury trial “[b]y
written consent filed with the clerk or judge” or “[b]y oral
consent” in open court].) If the other side objects, however, it
may ask that the case go forward as a jury trial under section
631(g); it is not barred from relief under that provision merely
because it has not made its own timely jury demand.
In evaluating such a request for relief, a court properly
considers a host of essentially equitable factors. An invoking
party may have its reasons for belatedly deciding to waive jury
after all, but to wait until the day of trial risks wasting the time
and resources of the other parties (to say nothing of the
prospective jurors who have taken time out from other
obligations in order to be prepared to serve). Thus, in this case,
the trial court should have weighed Fonnegra’s newly
announced desire for a bench trial against any potential
unfairness to TriCoast after it had expended resources
preparing for a jury trial Fonnegra had demanded. It should
also have considered whether Fonnegra’s belated withdrawal of
his jury demand right before trial began was a tactical decision
and, if so, whether that sort of tactical decision should be
rewarded. The trial court might additionally have considered
the fact TriCoast could have sought to protect itself from any
last-minute waiver on Fonnegra’s part by having posted its own
jury fees. We express no views on any of these issues, nor do we
suggest that the trial court’s consideration was necessarily
limited to the issues we have identified. Ultimately it was for
the trial court to determine in the first instance, based on a
consideration of all relevant factors, whether to exercise its
discretion to grant TriCoast’s request.
19

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
C.
Having addressed the proceedings in the trial court, the
next — and, ultimately, dispositive — question concerns the
remedies available on appeal. After denying TriCoast’s request
for relief from waiver, the trial court advised TriCoast that it
could seek writ relief. TriCoast declined to do so, instead trying
the case before the court. Now, raising the issue for the first
time on appeal of the court’s judgment, TriCoast argues reversal
is required because of deficiencies in the trial court’s handling
of its request for relief from jury waiver, without regard to
whether those deficiencies were prejudicial. We are not
persuaded.
We begin by reviewing a few basics. “A reviewing court
may exercise its jurisdiction in either a direct appeal or an
extraordinary writ proceeding. [Citation.] A writ of mandate,
or mandamus, is an extraordinary writ known at common law.
The writ of mandate lies generally to compel performance of a
legal duty when no plain, speedy, and adequate remedy at law
is available. (Code Civ. Proc., §§ 1085–1086.) Review by
mandate ‘is often sought before trial to avoid the effect of a trial
court’s order or other ruling that will affect the conduct of the
proceedings and that could not otherwise be challenged until
after judgment is rendered.’ [Citation.] Unlike the appeal
following judgment, which is heard as a matter of statutory
right, review by writ is at the discretion of the reviewing court.
‘The discretionary aspect of writ review comes into play
primarily when the petitioner has another remedy by appeal
and the issue is whether the alternative remedy is adequate.’ ”
(People v. Mena (2012) 54 Cal.4th 146, 153.
20

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
For decades, California courts have “uniformly permitted
a trial court’s denial of a request for a jury trial to be reviewed
pretrial by a petition for extraordinary writ.” (Shaw v. Superior
Court (2017) 2 Cal.5th 983, 992 [formally overruling the
contrary holding of Nessbit v. Superior Court (1931) 214 Cal. 1,
as effectively superseded by this court’s clarification of the law
governing extraordinary writ review in Abelleira v. District
Court of Appeal (1941) 17 Cal.2d 280].) Indeed, the cases
recognize writ review as the preferred method for securing an
erroneously denied jury trial, because writ review permits the
issue to be settled before trial ever begins, thus avoiding
repetitive litigation and promoting judicial economy. (See
Byram, supra, 74 Cal.App.3d at p. 654 [“even if [the complaining
party] could [obtain] . . . reversal of the judgment [after a bench
trial], such a procedure would be inefficient and time
consuming”], quoted in Shaw, at p. 991; see also, e.g., Monster,
LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1224
[“[R]eview by way of extraordinary writ is ‘normally . . . the
better practice’ so as to avoid ‘time needlessly expended in a
court trial’ ” (quoting Selby Constructors v. McCarthy (1979) 91
Cal.App.3d 517, 522–523)]; Van de Kamp v. Bank of America
(1988) 204 Cal.App.3d 819, 862 [“[T]he better practice is to seek
review of [a denial of a jury trial] by writ, saving the time and
expense of a court trial if a jury trial improperly was denied”];
Turlock Golf etc. Club v. Superior Court (1966) 240 Cal.App.2d
693, 695 [“Prohibition is a proper remedy, in circumstances such
as these, to test a litigant’s right to a jury trial. . . . [I]t would
be inefficient and, indeed, unconscionable to refuse to ascertain
its right to a jury trial at this stage of the case” (citations
omitted)].
21

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
A litigant may also choose to raise a claim related to the
denial of a jury by filing an appeal after judgment. But under
article VI, section 13 of the California Constitution, “[a]
judgment may not be reversed on appeal . . . unless ‘after an
examination of the entire cause, including the evidence,’ it
appears the error caused a ‘miscarriage of justice.’ ” (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 574, quoting Cal.
Const., art. VI, § 13.) The constitutional constraint, which
applies in civil as well as criminal cases, “generally ‘prohibits a
reviewing court from setting aside a judgment due to trial court
error unless it finds the error prejudicial.’ ” (F.P. v. Monier
(2017) 3 Cal.5th 1099, 1108 (F.P.).) This means that a litigant
that might have been able to establish error on interlocutory
writ review, and thus secure a writ compelling the trial court to
conduct proceedings differently, typically will not be able to
secure relief on direct review of the court’s judgment without
demonstrating both error in the conduct of proceedings and
“prejudice occasioned by the error.” (People v. Mena, supra, 54
Cal.4th at p. 158; see ibid. [prejudice required in postjudgment
appeal raising claim of erroneous denial of a pretrial lineup]; see
also, e.g., People v. Wilson (1963) 60 Cal.2d 139, 149–154
[prejudice required in postjudgment appeal raising claim of
deprivation of statutory speedy trial rights]; People v. Pompa-
Ortiz (1980) 27 Cal.3d 519, 529–530 [prejudice required in
postjudgment appeal raising claim of improper closing of
courtroom during a preliminary examination in a criminal
case].
This general rule does have an important exception: “even
under article VI, section 13, an error is reversible per se when it
constitutes ‘a “ ‘structural [defect] in the . . . trial mechanism’ ”
that defies evaluation for harmlessness.’ ” (F.P., supra,
22

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
3 Cal.5th at p. 1108.) A structural defect or error is one that
affects “the framework within which the trial proceeds, rather
than simply an error in the trial process itself.” (Arizona v.
Fulminante (1991) 499 U.S. 279, 310.) “A structural error
requires per se reversal because it cannot be fairly determined
how a trial would have been resolved if the grave error had not
occurred.” (People v. Anzalone (2013) 56 Cal.4th 545, 554.) “But
‘[c]ategorization of an error as structural represents “the
exception and not the rule.” ’ (People v. Sivongxxay (2017) 3
Cal.5th 151, 178 [219 Cal.Rptr.3d 265, 396 P.3d 424].) ‘[A]
strong presumption’ exists against finding that an error falls
within the structural category, and ‘it will be the rare case’
where an error — even ‘a constitutional violation’ — ‘will not be
subject to harmless error analysis.’ (Anzalone, supra, at
p. 554.)” (F.P., at p. 1108.
The central question here is whether the erroneous denial
of relief from a civil jury waiver falls into this exception. The
parties here do not dispute that the deprivation of the
constitutional right — as distinct from the denial of relief from
the waiver of that right — does constitute an error warranting
automatic reversal. Even before we adopted the structural error
framework just described, we held that “ ‘[t]he denial of a trial
by jury to one constitutionally entitled thereto constitutes a
miscarriage of justice and requires a reversal of the judgment.’ ”
(People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300,
citing Cowlin, supra, 46 Cal.App.2d at pp. 476–477.) Since then,
the Courts of Appeal have likewise consistently concluded that
the erroneous denial of a civil litigant’s right to a jury trial, in
the absence of a waiver of the right, is subject to automatic
reversal. (See, e.g., Rincon EV Realty LLC v. CP III Rincon
Towers, Inc. (2017) 8 Cal.App.5th 1, 19 [“where, as here, no valid
23

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
waiver has occurred and a trial court has ‘denied [a party] its
constitutional right to [jury] trial in the first instance,’ the error
is structural, reversible per se” (quoting Martin v. County of Los
Angeles (1996) 51 Cal.App.4th 688, 698)]; accord, Valley Crest
Landscape Development, Inc. v. Mission Pools of Escondido, Inc.
(2015) 238 Cal.App.4th 468, 493 [holding that it was reversible
error per se to deny jury trial on an express indemnity claim
where the appellant did not consent to waiver].) This conclusion
is consistent with one of the core purposes of the structural error
doctrine, which is “to ensure insistence on certain basic,
constitutional guarantees” that “should define the framework”
of any trial. (Weaver v. Massachusetts (2017) 582 U.S. 286, 295;
see id. at pp. 294–296 [discussing structural error in the
criminal context]; accord, In re Christopher L. (2022) 12 Cal.5th
1063, 1077.) The right of trial by jury is a cornerstone of our
legal system, and the prejudice that results from the deprivation
of the right is of the sort that cannot be measured by
conventional inquiry into the likely effect of the deprivation on
trial outcomes. (Cf. Weaver, at pp. 295–296.
But as TriCoast acknowledges, for a party that has validly
waived its jury right — as TriCoast undisputedly did here — the
denial of relief from jury waiver is not the same thing as
deprivation of the constitutional right of jury trial. It is, of
course, true that both roads ultimately lead to the same place,
which is trial to a court rather than to a jury. Yet the
fundamental constitutional interests at stake differ. While the
California Constitution recognizes trial by jury as an “inviolate
right,” it also states that the right may be waived. (Cal. Const.,
art. I, § 16.) Where a party has validly waived its jury right, the
question whether to grant a jury trial notwithstanding waiver
raises no question of the deprivation of a constitutionally
24

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
guaranteed framework for the conduct of trial. As we have
explained, even in criminal cases “[i]t is well established that a
waiver of a jury trial, voluntarily and regularly made, cannot
afterward be withdrawn except in the discretion of the court.”
(People v. Chambers (1972) 7 Cal.3d 666, 670; accord, Gonzales,
supra, 20 Cal.3d at p. 507.) A party that has waived its right to
a jury trial no longer has that right, because it either
affirmatively waived it or opted not to invoke it in the first
instance. That party does not have a right to a jury trial,
constitutional or otherwise. That is different from a situation
where a party that has properly invoked its jury trial right and
had that right wrongly denied — where, that is, the party has
been deprived of the constitutional right it did not give up in the
first place.
In view of this difference, a number of appellate courts
have said that a showing of prejudice resulting from the denial
of relief is generally required to justify reversing the judgment
on appeal. (McIntosh, supra, 151 Cal.App.3d at p. 364, fn. 2
[prejudice required to justify reversing judgment where trial
court had found that the party “ ‘was playing games all along
with this idea of a jury trial’ ”]; see id. at pp. 363–364; see also
Gann, supra, 231 Cal.App.3d at p. 1704 [reciting the same rule
in dicta]; Byram, supra, 74 Cal.App.3d at p. 653 [same].
The court in Byram explained why such a rule makes
practical sense: “ ‘Defendants cannot play “Heads I win, Tails
you lose” with the trial court.’ Reversal of the trial court’s
refusal to allow a jury trial after a trial to the court would
require reversal of the judgment and a new trial. It is then
reasonable to require a showing of actual prejudice on the
record . . . .” (Byram, supra, 74 Cal.App.3d at p. 653, quoting
Tyler v. Norton (1973) 34 Cal.App.3d 717, 722, and citing Oakes
25

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265.) Other courts
have explained why the rule makes sense of the law: Errors in
exercising section 631(g) discretion to relieve a party from the
consequences of waiver do not presumptively lead to the kind of
unfairness that would justify a rule of automatic reversal. For
example, in Glogau v. Hagan (1951) 107 Cal.App.2d 313 the
court declined to reverse the judgment based on the denial of
relief from jury waiver, explaining, among other things, that
“prejudice cannot be presumed from the fact that appellants did
not try their case to a jury”; rather, “it is presumed that they
enjoyed the benefits of a fair and impartial trial as contemplated
by the Constitution and the statutes.” (Id. at pp. 318, 319;
accord, Harmon v. Hopkins (1931) 116 Cal.App. 184, 188
[declining to presume prejudice from a court trial after the
denial of an untimely jury demand when the appellants’ “only
complaint” was that they did not get to try their case to a jury];
Holbrook & Tarr v. Thomson (1956) 146 Cal.App.2d 800, 803
[same].
In arguing for a rule of automatic reversal, TriCoast again
invokes Mackovska and other cases treating an erroneous denial
of relief from jury waiver as grounds for automatic reversal. But
as the Court of Appeal here correctly observed, the Mackovska
court “conflated denial of the right to a jury trial ‘ “in the first
instance,” ’ absent any prior waiver, with denial of a motion for
relief from a jury trial waiver.” (TriCoast, supra, 74 Cal.App.5th
at p. 246, quoting Mackovska, supra, 40 Cal.App.5th at p. 16.
For reasons we have already explained, for a party that has
26

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
validly waived its constitutional right to jury trial, the two
things are not the same.7
The courts in the two other cases on which TriCoast relies,
Bishop and Simmons, offered no analysis to support their
application of a rule of automatic reversal. They instead simply
cited Byram, supra, 74 Cal.App.3d at page 654 for the
proposition that “the denial of a jury trial after waiver where no
prejudice is shown to the other party or to the court is
prejudicial” (italics added) — evidently overlooking the fact that
Byram made this point in the context of granting interlocutory
writ relief and was not purporting to address the prejudice
necessary to justify reversing a court judgment on appeal. (See
Bishop, supra, 101 Cal.App.3d at p. 825; Simmons, supra, 123
Cal.App.3d at pp. 838–839.) Indeed, Byram granted writ relief
in part because it recognized that “[a]fter a trial to the court it
may be difficult for the petitioner to establish that he was
prejudiced by the denial of a jury trial.” (Byram, at p. 654.
Neither Bishop nor Simmons offers substantive support for a
general rule of automatic reversal in postjudgment appeals of
section 631(g) denials.
TriCoast argues that a rule of automatic reversal is
justified by the very difficulty the Byram court had identified, of
showing how the discretionary denial of relief from jury waiver
caused actual prejudice. The nature and scope of the necessary
showing is beyond our inquiry here. But assuming the
7
Although TriCoast strenuously argues its entitlement to
relief from waiver, it does not dispute that its initial waiver was
valid. We have no occasion to address any issues that may arise
when a party claims that it was denied the constitutional jury
right without a valid expression of “consent . . . as prescribed by
statute.” (Cal. Const., art. I, § 16.
27

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
correctness of the premise, TriCoast does not establish a
sufficient reason to dispense with the ordinary requirement that
prejudice be shown before a judgment will be set aside or a new
trial granted on the basis of an error that does not involve the
actual or even arguable deprivation of the constitutional jury
right. This is not a case in which a jury invocation was properly
made and improperly disregarded. Nor is it a case where the
invocation was made in substance, though in a manner
technically noncompliant with the governing statute. Rather, in
this case TriCoast opted against invoking the jury right, though
it would later change its mind when its opponent decided to
waive his jury demand on the day of trial. TriCoast could have
sought writ review of the trial court’s denial of its request for
relief from waiver, but instead decided to wait until after
judgment to pursue the issue. Under these circumstances, it
places no inappropriate burden on TriCoast to demand a
showing of actual prejudice before we will reverse the judgment,
and order a new trial, on grounds that there has been a
miscarriage of justice.8
8
TriCoast argues that seeking writ relief would have been
impractical because it did not learn that Fonnegra had
withdrawn his jury demand until the first morning of trial. But
TriCoast fails to explain why it could not have sought a
continuance to allow it to file a writ petition, if that is what it
wished to do.
TriCoast also argues that even if it had filed a writ
petition, it would not likely have succeeded. Because TriCoast
did not in fact seek writ relief, it is impossible to know. We
express no view about what, if any, showing of prejudice would
be required if TriCoast had tried, and failed, to secure writ relief
before challenging the judgment on appeal.
28

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
Finally, TriCoast does claim that it was prejudiced here —
not because it was wrongly deprived of its constitutional right to
trial by jury, but because of the time it wasted preparing for a
jury trial that was demanded, then dropped, by the other side.
But this is not the sort of prejudice that article VI, section 13 is
concerned with. Wasted effort is unfortunate, but it is often an
inevitable fact of litigation, and it is not reason enough to set
aside a duly entered judgment and send the case back for a new
trial — a result that would require an even greater expenditure
of effort from all involved. TriCoast’s concerns do not implicate
the fairness of the trial it did receive, nor could they be remedied
by reversing the judgment and setting the case for a new trial.
(See F.P., supra, 3 Cal.5th at p. 1112 [“ ‘No form of civil trial
error justifies reversal and retrial, with its attendant expense
and possible loss of witnesses, where in light of the entire record,
there was no actual prejudice to the appealing party’ ”].)9 We
therefore conclude TriCoast has failed to demonstrate any
actual prejudice justifying reversal of the judgment of the trial
court.10
9
TriCoast cursorily argues in its reply brief that it was
“strategically disadvantaged in its trial preparation” by
Fonnegra’s belated and unexpected withdrawal of his jury
demand. But TriCoast fails to explain how, precisely, it was
“strategically disadvantaged” by presenting its case to the judge
rather than a jury. Thus, even if the argument had been timely
raised, we would not entertain it.
10
We disapprove the following cases to the extent they are
inconsistent with this opinion: Mackovska v. Viewcrest Road
Properties LLC, supra, 40 Cal.App.5th 1; Simmons v. Prudential
Ins. Co., supra, 123 Cal.App.3d 833; Bishop v. Anderson, supra,
101 Cal.App.3d 821.
29

TRICOAST BUILDERS, INC. v. FONNEGRA
Opinion of the Court by Kruger, J.
III.
The Court of Appeal in this case was correct that the trial
court can consider other factors aside from hardship to the
opposing party when it is deciding whether to exercise its
discretion to grant relief from a jury trial waiver. We do not,
however, decide whether the trial court properly exercised its
discretion here. Because TriCoast has raised the issue for the
first time on appeal of the trial court’s judgment, TriCoast must
show it was prejudiced by the trial court’s denial of its request
for relief from waiver. Because TriCoast has not made that
showing, reversal of the judgment is not warranted.
The judgment of the Court of Appeal is affirmed.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
30

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion TriCoast Builders, Inc. v. Fonnegra

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 74 Cal.App.5th 239
Review Granted (unpublished)
Rehearing Granted

Opinion No. S273368
Date Filed: February 26, 2024

Court: Superior
County: Los Angeles
Judge: Melvin D. Sandvig

Counsel:
Connette Law Office, Michael T. Connette; Benedon & Serlin, Judith
E. Posner and Kian Tamaddoni for Plaintiff and Appellant.
Eric Bensamochan for Defendant and Respondent.
Horvitz & Levy, Andrea L. Russi and Steven S. Fleischman for the
Association of Southern California Defense Counsel as Amicus Curiae
on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Judith E. Posner
Benedon & Serlin, LLP
22708 Mariano Street
Woodland Hills, CA 91367
(818) 340-1950
Eric Bensamochan
Attorney at Law
9025 Wilshire Boulevard, #215
Beverly Hills, CA 90211
(818) 574-5740

People v. Clark

admin — Thu, 22 Feb 2024 18:52:41 +0000

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KEJUAN DARCELL CLARK,
Defendant and Appellant.
S275746
Fourth Appellate District, Division Two
E075532
Riverside County Superior Court
RIF1503800
February 22, 2024
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Jenkins, and Evans concurred.

PEOPLE v. CLARK
S275746
Opinion of the Court by Kruger, J.
This is one in a series of cases concerning the gang
sentencing provisions in Penal Code section 186.22 (section
186.22), as they were recently amended by Assembly Bill
No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which was
signed into law in 2021 (see Stats. 2021, ch. 699, §3).
The question in this case concerns Assembly Bill 333’s
changes to the requirements for proving the predicate offenses
constituting a “pattern of criminal gang activity” — one of the
requirements for proving the existence of a “criminal street
gang.” (§ 186.22, subds. (e), (f).) As amended by Assembly Bill
333, section 186.22 defines the term “ ‘criminal street gang’ ” to
mean “an ongoing, organized association or group of three or
more persons, . . . whose members collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22, subd.
(f), italics added (section 186.22(f)).) The amended statute
defines the “ ‘pattern of criminal gang activity,’ ” in turn, to
mean, in pertinent part, the commission of (or other specified
forms of involvement in) two offenses enumerated in the statute,
“provided . . . [they] were committed on separate occasions or by
two or more members” of the gang and the offenses provided a
benefit to the gang that is more than reputational. (§ 186.22,
subd. (e)(1), italics added (section 186.22(e)(1)).
The Courts of Appeal have divided over whether, under
the statute as amended by Assembly Bill 333, the statutory
reference to “collective[]” engagement in a pattern of criminal
1

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
gang activity is properly read to mean that each of the two
predicate offenses must be committed in concert with other gang
members and cannot be committed by individual gang members
acting alone. We conclude that this reading is refuted by the
plain language of the statute, which says that the predicate
offenses must be “committed on separate occasions or by two or
more members.” (§ 186.22(e)(1), italics added.) We go on,
however, to consider what the collective engagement
requirement does mean. Reading the statutory text in light of
the Legislature’s purpose of more narrowly targeting the threats
posed by organized group activity, we hold that collective
engagement requires a nexus between the individual predicate
offenses and the gang as an organized, collective enterprise.
This organizational nexus requirement is satisfied by showing a
connection between the predicate offenses and the
organizational structure, primary activities, or common goals
and principles of the gang. Because the Court of Appeal did not
account for this feature of the statute, we reverse and remand
for further proceedings.
I.
Defendant Kejuan Darcell Clark was charged with several
offenses stemming from a July 2015 incident in which he and
others entered a woman’s home without permission. The
prosecution alleged that Clark proceeded to the woman’s
bedroom, where he raped her, then stole her laptop computer
and phone. (People v. Clark (2022) 81 Cal.App.5th 133, 137–141
(Clark).
At the time, Clark was a member of the Northside
Parkland street gang, a subset of the Sex Cash Money street
gang. (Clark, supra, 81 Cal.App.5th at p. 138.) In addition to
2

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
charging the substantive offenses, the prosecution alleged
various gang enhancements under section 186.22, subdivision
(b). To establish the gang enhancements, the prosecution
introduced the testimony of a gang expert. The gang expert
testified that the primary activities of the gang included a
variety of criminal offenses, including robbery and burglary.
The expert described Sex Cash Money as a loosely controlled
organization. The gang did not have a leader and formal
structure; instead, there were “big homies” in the gang who were
older and looked up to by other members. The expert was not
aware of any expectation for Sex Cash Money members to give
proceeds from a robbery or burglary to the gang, unlike some
gangs that had specific requirements to “pay upstairs” after
such crimes. Much of the expert’s testimony was devoted to
establishing that the individuals with Clark on the night of the
charged burglary were also gang members and that the charged
burglary would benefit the gang.
To prove the requisite pattern of criminal gang activity by
the gang, the prosecution introduced certified convictions
showing that another gang member, Damon Ridgeway, had
pleaded guilty to robbery in 2014 and to residential burglary in
2009, and that Clark had pleaded guilty to attempted burglary
in 2014. The expert testified that those offenses, and the
conviction or pleas of Clark’s codefendants in the charged
burglary, showed a pattern of criminal activity by Sex Cash
Money. The testimony did not address whether the predicate
offenses, as distinct from the charged burglary, benefited the
gang, or how they were otherwise related to the gang.
The jury convicted Clark of rape (Pen. Code, § 261,
subd. (a)(2)), forced oral copulation (id., § 287, subd. (c)(2)(A)),
false imprisonment (id., § 236), first degree burglary (id., §§ 459,
3

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
460, subd. (a)), and robbery in concert inside an inhabited
dwelling (id., §§ 211, 213, subd. (a)(1)(A)). The jury found the
gang enhancement allegations true as to the burglary, robbery,
and false imprisonment counts. (Clark, supra, 81 Cal.App.5th
at pp. 135–136; see § 186.22, subd. (b)(1)(C).) Clark was
sentenced to 20 years plus an indeterminate term of 90 years to
life, including a 10-year term for the gang enhancement.
Clark appealed his convictions and sentence. While his
appeal was pending, the Assembly Bill 333 amendments to
section 186.22 took effect. Clark argued, and the People did not
dispute, that the amendments applied retroactively to cases on
direct review. (Clark, supra, 81 Cal.App.5th at p. 144, fn. 11.
Invoking the collective engagement provision of the new law,
Clark asserted that the evidence of predicate offenses at trial
was insufficient to support the gang enhancements because the
evidence showed only the commission of offenses by individual
gang members. Clark argued that the statute, as amended by
Assembly Bill 333, required two or more gang members, acting
in concert, to commit each of the two required predicate offenses.
(Clark, at pp. 143–144.
The Court of Appeal rejected this argument as
inconsistent with the definition of a “ ‘pattern of criminal gang
activity’ ” in section 186.22(e)(1), which requires that the two
predicate offenses “were committed on separate occasions or by
two or more members.” The court reasoned that, under the plain
language of the statute, “there are two options for establishing
the requisite pattern [of predicate offenses]: (1) prove two
different gang members separately committed crimes on two
occasions; or (2) prove two different gang members committed a
crime together on a single occasion.” (Clark, supra, 81
Cal.App.5th at p. 144.) Here, the evidence was sufficient
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
because it showed that “two different gang members separately
committed crimes on two occasions.” (Ibid., italics added.
The Court of Appeal expressly disagreed with People v.
Delgado (2022) 74 Cal.App.5th 1067, which held that collective
engagement under section 186.22(e)(1) requires proof that each
of the predicate offenses was committed by at least two gang
members acting in concert, and with People v. Lopez (2021) 73
Cal.App.5th 327, 345, which had reversed gang enhancements
where “[n]o evidence was introduced at trial to establish that
the crimes committed by [individual gang members] constitute
collective criminal activity.”
We granted review to address the issue.
II.
A.
The Legislature first enacted section 186.22 in 1988 as
part of the California Street Terrorism Enforcement and
Prevention Act (Pen. Code, § 186.20 et seq.), also known as the
STEP Act. (See Stats. 1988, ch. 1242, § 1, pp. 4127–4130.
Subdivision (b) of section 186.22 prescribes “sentence
enhancements or alternate penalties of varying length for ‘any
person who is convicted of a felony committed for the benefit of,
at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in
any criminal conduct by gang members.’ (§ 186.22(b)(1); see id.,
subd. (b)(4).)” (People v. Renteria (2022) 13 Cal.5th 951, 962.
The STEP Act also defines a substantive offense punishing
active participation in a criminal street gang. (§ 186.22,
subd. (a).
As originally enacted, the statute defined a “ ‘criminal
street gang’ ” as “any ongoing association of three or more
5

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
persons that shares a common name or common identifying sign
or symbol; has as one of its ‘primary activities’ the commission
of specified criminal offenses; and engages through its members
in a ‘pattern of criminal gang activity.’ [Citation.] Under the
[STEP Act], ‘pattern of criminal gang activity’ means that gang
members have, within a certain time frame, committed or
attempted to commit ‘two or more’ of specified criminal offenses
(so-called ‘predicate offenses’).” (People v. Gardeley (1996) 14
Cal.4th 605, 610, italics omitted, citing former § 186.22.) The
original statute specified seven offenses, such as robbery, arson,
and witness intimidation, that made up the targeted “primary
activities” of a gang as well as the predicate offenses of the
gang’s members. (§ 186.22, former subd. (c); see also id., former
subd. (d).
The Legislature substantially amended the STEP Act in
Assembly Bill 333, also known as the STEP Forward Act of
2021. (Stats. 2021, ch. 699, § 1.) The new legislation, which
became effective on January 1, 2022, made several changes to
the definition of section 186.22 gang enhancements. “First, it
narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three
or more persons.’ (§ 186.22, subd. (f), italics added.) Second,
whereas section 186.22, former subdivision (f) required only that
a gang’s members ‘individually or collectively engage in’ a
pattern of criminal activity in order to constitute a ‘criminal
street gang,’ Assembly Bill 333 requires that any such pattern
have been ‘collectively engage[d] in’ by members of the gang.
(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also
narrowed the definition of a ‘pattern of criminal activity’ by
requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date
6

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
that the currently charged offense is alleged to have been
committed; (2) the offenses were committed by two or more gang
‘members,’ as opposed to just ‘persons’; (3) the offenses
commonly benefitted a criminal street gang; and (4) the offenses
establishing a pattern of gang activity must be ones other than
the currently charged offense. (§ 186.22, subd. (e)(1), (2).
Fourth, Assembly Bill 333 narrowed what it means for an
offense to have commonly benefitted a street gang, requiring
that any ‘common benefit’ be ‘more than reputational.’
(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169,
1206 (Tran).) And finally, Assembly Bill 333 omitted certain
nonviolent offenses from the list of offenses that could make up
a gang’s primary activities or form the requisite pattern of
criminal gang activity, reducing the list of offenses from 33 to
26. (Compare § 186.22, former subd. (e)(1)–(33), as amended by
Stats. 2017, ch. 561, § 178 with § 186.22(e)(1)(A)–(Z).)1
1
As amended, the definition of a “ ‘criminal street gang’ ”
now reads in full: “As used in this chapter, ‘criminal street gang’
means an ongoing, organized association or group of three or
more persons, whether formal or informal, having as one of its
primary activities the commission of one or more of the criminal
acts enumerated in subdivision (e), having a common name or
common identifying sign or symbol, and whose members
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22(f).
The full definition of a “ ‘pattern of criminal gang
activity,’ ” as amended, now reads: “As used in this chapter,
‘pattern of criminal gang activity’ means the commission of,
attempted commission of, conspiracy to commit, or solicitation
of, sustained juvenile petition for, or conviction of, two or more
of the following offenses, provided at least one of these offenses
occurred after the effective date of this chapter, and the last of
7

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
In Tran, this court considered a number of questions
concerning Assembly Bill 333’s application to cases tried before
its effective date. Tran held, in line with a substantial body of
appellate authority, that Assembly Bill 333’s amendments to
the definition of section 186.22 gang enhancements are
retroactively applicable to cases on direct review. (Tran, supra,
13 Cal.5th at p. 1207.) Tran also considered a question similar
to the one presented in this case, concerning Assembly Bill 333’s
application to predicate offenses involving individual gang
members, but we did not have occasion to decide it. Instead,
accepting the Attorney General’s confession of error, we
reversed the gang enhancement without addressing whether
the statute allows for the admission of predicate offenses
committed by lone gang members. We explained that “because
the jury was not presented with any discernible theory as to how
[individual gang] members ‘collectively engage[d] in’ the[]
predicate crimes,” “[w]e need not resolve the contours of
Assembly Bill 333’s collective engagement requirement.” (Tran,
at p. 1207.) We now turn to that task.
B.
We begin by addressing the narrow conflict in the Courts
of Appeal about the scope of Assembly Bill 333’s changes to
section 186.22’s predicate offense requirement. The conflict
centers on the interaction between the two definitional
those offenses occurred within three years of the prior offense
and within three years of the date the current offense is alleged
to have been committed, the offenses were committed on
separate occasions or by two or more members, the offenses
commonly benefited a criminal street gang, and the common
benefit from the offenses is more than reputational.”
(§ 186.22(e)(1).
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
provisions pertinent to the requirement. First, there is the
definition of the term “ ‘criminal street gang’ ” to mean, as
relevant here, “an ongoing, organized association or group of
three or more persons, . . . whose members collectively engage
in, or have engaged in, a pattern of criminal gang activity.”
(§ 186.22(f), italics added.) The use of the word “collectively”
represents a change to the former law, which had required that
gang members “individually or collectively engage in” a pattern
of criminal gang activity (§ 186.22, former subd. (f)). Then,
second, there is the nested definition of “ ‘pattern of criminal
gang activity,’ ” which states that the requisite pattern is
established by commission of two enumerated offenses, so long
as they “were committed on separate occasions or by two or more
members” of the gang and the offenses provided a common
benefit to the gang that is more than reputational.
(§ 186.22(e)(1).) In the “pattern” definition, the requirement
that the predicate offenses provide a common benefit is new, but
the “on separate occasions or by two or more members” language
is largely the same as in the original STEP Act; Assembly Bill
333 replaced “two or more persons” with “two or more members”
but otherwise preserved the language of the original.
In an effort to give effect to the amended statute’s
collective engagement language, the Court of Appeal in Delgado
concluded that each predicate offense must be committed by two
or more gang members. (People v. Delgado, supra, 74
Cal.App.5th at p. 1088.) The court relied on the “commonsense”
meaning of the word “ ‘collectively,’ ” as well as the history
behind its deployment in Assembly Bill 333. (Delgado, at
p. 1088.) The court explained that before Assembly Bill 333, the
predicate offense requirement could be established “by proving
two gang members individually committed the predicate
9

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
offenses on two separate occasions.” (Delgado, at p. 1089, citing
§ 186.22, former subd. (e).) A reading that would instead
require proof that at least two gang members committed each
predicate offense, the Court of Appeal reasoned, was consistent
with “the Legislature’s intent to dramatically limit the scope of
the gang enhancement.” (Delgado, at p. 1089.
The obvious difficulty with this reading is that it fails to
give meaning to the language of section 186.22(e)(1), which
states that the requisite pattern of criminal activity is
established by two offenses committed “on separate occasions or
by two or more members.” (§ 186.22(e)(1), italics added.) The
Delgado court never attempted to explain how its approach
could be squared with this provision, and we do not believe it
can. By contrasting offenses committed on “separate occasions”
with those committed by “two or more members,” the language
of section 186.22(e)(1) indicates that only the second alternative
requires the participation of more than one gang member. This
is the most straightforward reading of the language of the
statute. It is also how this court understood the same language
when asked to interpret it some 25 years ago. (People v. Loeun
(1997) 17 Cal.4th 1, 9 (Loeun) [the “Legislature’s use of the
disjunctive ‘or’ in [§ 186.22, former subd. (e)] indicates an intent
to designate alternative ways of satisfying the statutory
requirements”]; see People v. Gardeley, supra, 14 Cal.4th at
p. 624 [crime committed by an individual gang member
constituted a predicate offense under § 186.22, former subd.
(e)].) The Legislature preserved this language in Assembly Bill
333, even as it changed the language of section 186.22(e)(1) in
other respects. (See Tran, supra, 13 Cal.5th at p. 1206
[detailing changes].) We presume the Legislature understood
that the effect of retaining the language intact would be to
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
preserve the long-settled understanding of its meaning. (See,
e.g., Tuolumne Jobs & Small Business Alliance v. Superior
Court (2014) 59 Cal.4th 1029, 1039 [“ ‘The Legislature is
presumed to be aware of all laws in existence when it passes or
amends a statute.’ ”].)2
Clark argues that there now exists tension between
section 186.22(e)(1) and section 186.22(f) that pre-Assembly Bill
333 cases such as Loeun did not, and could not have, addressed.
But if there is indeed tension, the approach taken in Delgado
does not resolve it. Rather than harmonize the two provisions,
in its effort to give meaning to section 186.22(f)’s reference to
2
In Loeun, we interpreted the statute to mean that the
prosecution could rely on the substantive offense charged in the
case as one of the predicate offenses establishing a pattern of
criminal gang activity. (Loeun, supra, 17 Cal.4th at p. 5.
Assembly Bill 333 overturned this aspect of Loeun by expressly
requiring proof of two predicate offenses other than the charged
offense. (Stats. 2021, ch. 699, § 3, adding § 186.22, subd. (e)(2).
But Assembly Bill 333 left untouched the disjunctive
formulation of the requirement in section 186.22, subdivision
(e)(1) that predicate offenses be committed “on separate
occasions or by two or more” members. (Stats. 2021, ch. 699, § 3,
italics added.
Assembly Bill 333 also retained in the statutory list of
qualifying predicate offenses certain crimes that are ordinarily
committed by individuals, such as carrying a concealed firearm
and other similar firearm offenses (e.g., § 186.22, subd. (e)(1)(Y);
see also, e.g., id., subd. (e)(1)(U), (X)), and rape as defined in
Penal Code section 261 (id., § 186.22, subd. (e)(1)(L)), rather
than the offense of rape in concert with another person (id.,
§ 264.1, subd. (a)). The Legislature’s retention of crimes
ordinarily committed by persons acting alone is an additional
indication that predicate offenses can be committed by
individual gang members and do not have to be committed by
multiple gang members acting in concert.
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
collective engagement, Delgado effectively rewrites section
186.22(e)(1) to give it a meaning at odds with its text — that
predicate offenses may be “committed on separate occasions by
two or more members, or by two or more members.” The result
of the insertion is not just to create an awkward redundancy,
but to change the meaning of the sentence by effectively
nullifying the disjunctive clause “or by two or more members.”
(See People v. Garcia (1999) 21 Cal.4th 1, 10 [a court should not
“disregard or rewrite some portion of the statute” but should
“harmonize and give effect to all its provisions”].
The unlikely reading Delgado gives to section 186.22(f)’s
collective engagement language is not compelled by the
ordinary, commonsense meaning of the phrase. The phrase
“collectively engage” is not always a synonym for “commit in
concert.” It can have that meaning. But the word “collectively”
is just as often used to refer to distinctively individual acts that,
considered in the aggregate, form a general pattern. (Webster’s
3d New Internat. Dict. (2002) p. 444 [“collective” denotes “a
number of persons or things considered as constituting one
group” or “aggregated”]; see, e.g., People v. Miranda-Guerrero
(2022) 14 Cal.5th 1, 12 [multiple interrogations “collectively”
spanned a three-day period]; People v. Dalton (2019) 7 Cal.5th
166, 262 [various instructions “collectively” conveyed the
appropriate concept].) Nor is it clear that the collective
engagement language, as it is used in the context of section
186.22(f), was meant to refer to the “collective[]” engagement of
just two gang members. The language appears in a general
definition of “ ‘criminal street gang,’ ” following a list of
attributes pertaining to the gang as a whole: its size, its primary
activities, its “common name or common identifying sign or
symbol.” (§ 186.22(f).) In that context, the reference to “whose
12

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
members collectively engage in, or have engaged in, a pattern of
criminal gang activity” (ibid., italics added) appears more likely
intended to refer to at least some measure of engagement by the
gang’s membership as a whole, rather than referring just to the
“collective[]” actions of a couple of individual members.
Nor is the Delgado court’s reading compelled by
consideration of the functional role the collective engagement
language plays in the statutory scheme. The law recognizes that
offenses committed by lone actors can be gang-related. (E.g.,
People v. Renteria, supra, 13 Cal.5th at p. 964.) The law also
recognizes that criminal street gangs typically involve “a
network of participants with different roles and varying kinds
of involvement.” (People v. Johnson (2013) 57 Cal.4th 250, 266.
As the Attorney General here notes, an individual gang member
could be responsible for collecting “taxes” from local drug dealers
on behalf of the gang, for violently assaulting those who do not
pay, or even for killing members of rival gangs. Such offenses,
though committed by individual gang members, would seem to
present no less a concern about broader patterns of criminal
gang activity — that is, collective engagement in crime — than
if they had been committed by two gang members acting
together.3 Certainly the Legislature that enacted Assembly Bill
3
Amicus curiae Peace and Justice Law Center argues that
the reference to predicate offenses committed “on separate
occasions or by two or more members” (§ 186.22(e)(1)) contains
a drafting error, and that the Legislature intended to replace
the preexisting “or” with “and.” We have acknowledged that an
“inadvertent” mix-up of “ ‘or’ ” and “ ‘and’ ” “is a familiar
example of a drafting error which may properly be rectified by
judicial construction.” (People v. Skinner (1985) 39 Cal.3d 765,
775.) But “[a]lthough we may properly decide upon such a
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
333 could plausibly so conclude. That it left intact the
disjunctive reference to offenses committed “on separate
occasions or by two or more members” (§ 186.22(e)(1), italics
added), suggests it did just that.
C.
The question, however, remains: If the “collectively
engage” language in section 186.22(f) does not mean that each
predicate offense must have been committed by at least two
gang members acting in concert, then what does it mean? The
language does not point to clear answers. In briefing the issue
in this court, the Attorney General has offered one possibility.
He suggests that by eliminating the reference to a gang’s
members “individually” engaging in a pattern of criminal gang
activity and instead focusing solely on “collective[]” engagement,
the Legislature was aligning the relevant portion of the
definition of a criminal street gang in section 186.22(f) with
other statutory changes, primarily, the new requirement that
the prosecution prove that each predicate offense conferred a
“common benefit” to the gang (§ 186.22(e)(1)).4
construction or reformation when compelled by necessity and
supported by firm evidence of the drafters’ true intent [citation],
we should not do so when the statute is reasonably susceptible
to an interpretation that harmonizes all its parts without
disregarding or altering any of them.” (People v. Garcia (1999
21 Cal.4th 1, 6.) Here, the amendments can be harmonized
without altering a term, and there is ample reason to believe the
Legislature’s use of “or” was deliberate rather than inadvertent.
We therefore do not second guess the Legislature’s choice to
leave the relevant conjunction in place.
4
The Court of Appeal offered another alternative: that, to
be suggestive of collective engagement by “ ‘members’ ” of the
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
Under the amended version of the statute, each predicate
offense must have conferred a “common benefit,” where the
common benefit is “more than reputational.” (§ 186.22(e)(1).
“Examples of a common benefit that are [sic] more than
reputational may include, but are not limited to, financial gain
or motivation, retaliation, targeting a perceived or actual gang
rival, or intimidation or silencing of a potential current or
previous witness or informant.” (Id., subd. (g).) The Attorney
General notes that this change evidences Assembly Bill 333’s
“broader focus on viewing a criminal street gang as an
organized, collective entity” rather than a loose grouping of
individuals who may commit crimes for their own purposes. In
the briefing, the Attorney General has argued that it is
consistent with that focus to regard proof of a common benefit
from the predicate offenses as sufficient to establish collective
engagement in a pattern of criminal gang activity. The Attorney
General offers, by way of example, a scenario involving offenses
committed by three individual gang members: one who sells
drugs for the gang, a second who murders a rival drug dealer,
and a third who takes possession of the murder weapon to make
it difficult to identify the perpetrator of the murder. The
gang, predicate offenses committed on different occasions must
be committed by different gang members. (Clark, supra, 81
Cal.App.5th at p. 144.) The Attorney General resists that
alternative interpretation but notes that we need not decide the
issue here because the two predicate offenses in this case were
in fact committed by different gang members. We reserve for
another case the question whether the use of the plural
“members” means that the predicate offenses must be
committed by at least two different gang members, and whether
or not those gang members may include the defendant.
(§ 186.22(f).
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
offenses, though committed by individual gang members, all
confer a common benefit to the gang as a whole. And in so doing,
the Attorney General argues, they also demonstrate the gang’s
collective engagement.
This view — under which the collective engagement
language merely reinforces the new requirement that the
predicate offenses confer a common benefit on the gang, without
adding anything to it — is not entirely implausible. But neither
is it obviously correct. It is certainly reasonable to conclude that
the collective engagement and common benefit changes are
related, insofar as both changes represent a shift in emphasis
toward the attributes that connect individual criminal acts to
the larger gang as a collective enterprise. At the same time,
there is at least a conceptual difference between a requirement
that members of a gang collectively engage in the pattern of
criminal activity shown by predicate offenses, on the one hand,
and a requirement that each predicate offense commonly
benefited the gang, on the other. A group of people can benefit
from the acts of another without having collectively engaged in
them. A crime may achieve a benefit for the entire gang, and
yet say little about collective engagement. An enterprising gang
member, for example, may take it upon himself to perform a one-
time act of embezzlement from his workplace that generates
proceeds enjoyed by the gang, though the gang is neither aware
of nor condones the gang member’s brand of freelancing.
The Attorney General’s proffered example does suggest
collective engagement in the predicate offenses, but there is
more at work in the example than just a common benefit. As
the Attorney General himself describes it, the example is
designed to show how “the term ‘collectively’ in [section
186.22](f) is most naturally read to comport with the common
16

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
structure of gangs and account for individual members’ various
roles in committing crimes for the common benefit of the gang,
viewed as a collective enterprise.” The concepts the Attorney
General invokes here — concerning the gang’s organizational
structure; the roles individual members play in carrying out its
primary activities; and consideration of the gang as a collective
enterprise — are all concepts that may overlap, but are not
always coextensive with the question whether individual
members’ offenses conferred a common benefit on the gang.
D.
Ultimately, to discern the meaning of the collective
engagement language, we examine the legislative history for the
light it may shed. (See Walker v. Superior Court (2021) 12
Cal.5th 177, 194 [“If the relevant statutory language is
ambiguous, we look to appropriate extrinsic sources, including
the legislative history, for further insights”].
Nothing in the legislative history speaks specifically to the
Legislature’s intentions in eliminating the reference to a gang
defined by members who “individually” engage in a pattern of
criminal gang activity (§ 186.22, former subd. (f)), and leaving
the requirement that members “collectively” engage in such a
pattern (§ 186.22(f)).5 What the history does indicate, however,
5
One senate analysis does describe the bill as revising the
law to require, among other things, that “the offenses were
committed by two or more members.” (Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 333
(2021–2022 Reg. Sess.) as amended July 13, 2021, p. 4, italics
added.) But as we have already explained, the actual language
of the statute is to the contrary, and no similar description of
section 186.22(f) appears in any of the other available legislative
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PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
is that the collective engagement language in section 186.22(f
was intended to have independent significance, separate and
apart from the requirements for proving predicate offenses in
section 186.22(e), such as the requirement to prove a common
benefit to the gang.
Legislative analyses emphasized that the bill would
redefine both the term “ ‘criminal street gang’ ” (§ 186.22(f)) and
the term “ ‘pattern of criminal gang activity’ ” (§ 186.22(e)). (See
Assem. Com. on Public Safety, Analysis of Assem. Bill No. 333
(2021–2022 Reg. Sess.) as amended Mar. 30, 2021, p. 1; Sen.
Com. on Public Safety, Analysis of Assem. Bill No. 333, supra,
as amended May 28, 2021, p. 2; Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 333,
supra, as amended July 13, 2021, p. 4.) And analyses not only
listed the new proof that would be necessary to establish the
predicate offenses — that they were committed by gang
members, benefited the gang, and occurred within three years
of the charged offense — but also separately described the
requirements contained in section 186.22(f). (Assem. Com. on
Public Safety, Analysis of Assem. Bill No. 333, supra, as
amended Mar. 30, 2021, p. 8 [listing the requirements for
proving predicate offenses under section 186.22(e) and
separately noting that the revised section 186.22(f) “would also
require the prosecution to prove the members collectively,
history documents. (See, e.g., Sen. Com. on Appropriations,
Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as
amended July 13, 2021, p. 2; Sen. Com. on Public Safety,
Analysis of Assem. Bill No. 333 (2021–2022 Reg. Sess.) as
amended May 28, 2021, p. 4.) We thus place no weight on what
appears to be a stray misdescription of the bill in a single line of
a single document.
18

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
rather than individually, engage in, or have engaged in a
‘pattern of criminal gang activity’ ”]; see also Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 333, supra, as amended July 13, 2021, p. 4 [same, regarding
the final version of the bill].) If the Legislature had intended
changes to section 186.22(f) to simply reflect and conform to the
requirements of section 186.22(e)(1), as the Attorney General
has argued, it seems unlikely that these descriptions of the bill
would have listed and described collective engagement as a
change with its own distinct meaning.
To discern that meaning, we turn to what the history
reveals, more generally, about the Legislature’s purposes in
enacting Assembly Bill 333. The overarching purpose of the
original STEP Act, as articulated in the declaration
accompanying its initial enactment in 1988, is “to seek the
eradication of criminal activity by street gangs by focusing upon
patterns of criminal gang activity and upon the organized
nature of street gangs, which together, are the chief source of
terror created by street gangs.” (Pen. Code, § 186.21.
Committee reports further explained that the STEP Act was
meant to target criminal street gangs the sponsors
characterized as “large scale big business and large-scale crime
in California.” (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 2013 (1987–1988 Reg. Sess.) June 8, 1987, p. 4;
see also Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 1555 (1987–1988 Reg. Sess.) as amended June 23, 1987, p. 4
[same].) To effectuate this purpose, the Legislature crafted a set
of requirements for proving the existence of a pattern of criminal
gang activity based on the commission of predicate offenses.
When the Legislature undertook to revise the STEP Act in
2021, it expressed concern that the Act had strayed from this
19

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
original purpose, with a devastating impact on California
communities. Although the STEP Act “was originally enacted
to target crimes committed by violent, organized criminal street
gangs,” and was only meant to apply “ ‘in the most egregious
cases where a pattern of criminal gang activity was clearly
shown,’ ” the STEP Act “has been continuously expanded
through legislative amendments and court rulings.” (Assem.
Bill 333, § 2(g).) The result, the Legislature found, was that
“[c]urrent gang enhancement statutes criminalize entire
neighborhoods historically impacted by poverty, racial
inequality, and mass incarceration as they punish people based
on their cultural identity, who they know, and where they live.”
(Id., § 2(a).) Groups of residents in certain neighborhoods “are
often mischaracterized as gangs despite their lack of basic
organizational requirements such as leadership, meetings,
hierarchical decisionmaking, and a clear distinction between
members and nonmembers.” (Id., § 2(d)(8).
Through Assembly Bill 333, the Legislature sought to
narrow the statute’s focus to align with its original intent: to
focus on the threats posed by organized criminal street gangs.
(See, e.g., Assem. Com. on Public Safety, Analysis of Assem. Bill
No. 333, supra, as amended Mar. 30, 2021, pp. 7–8 [Assem. Bill
333 would “redefine the term ‘criminal street gang’ ” to reflect a
recommendation from the committee on revision of the Penal
Code to focus the definition on “organized, violent enterprises”].
The Legislature made several changes toward this end,
beginning with its revision of the term “ ‘criminal street gang’ ”
to mean “an ongoing, organized association or group of three or
more persons . . . whose members collectively engage” in a
pattern of criminal gang activity. (§ 186.22(f), italics added.
While the legislative history may not clearly indicate the
20

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
intended meaning of the Legislature’s switch to a requirement
of collective engagement in a pattern of criminal gang activity,
it is clear what the Legislature meant this change to accomplish.
The change was made in service of the Legislature’s broader
goal of differentiating between the threat posed by organized
groups collectively engaged in criminal activity, versus the
threat posed by individual, loosely connected persons who
happen to commit crimes. That differentiation, we now
conclude, requires a showing that links the two predicate
offenses to the gang as an organized, collective enterprise.6
The Attorney General’s argument proceeds from this same
premise. But, as the Attorney General ultimately conceded at
oral argument, a singular focus on the common benefit
requirement in section 186.22(e) does not prove the existence of
a criminal street gang as defined in section 186.22(f). The fact
6
The Legislature initially added, but then dropped, a
requirement that the predicate offenses “were committed for the
benefit of, at the direction of, or in association with, the criminal
street gang, with the specific intent to promote, further, or assist
in criminal conduct by members of the criminal street gang at
issue.” (Legis. Counsel’s Dig., Assem. Bill No. 333 (2021–2022
Reg. Sess.), as amended Mar. 24, 2021.) That provision would
have required, with respect to predicate offenses, the same
gang-related and specific intent showings now required of the
charged offense, including an inquiry into the mens rea of the
typically absent third party gang member who allegedly
committed the offense. (See § 186.22, subd. (b)(1), (4); see also
People v. Renteria, supra, 13 Cal.5th at p. 965 [describing the
showing these provisions require with respect to the charged
offense].) That the Legislature discarded this more onerous
requirement does not affect our conclusion that the language the
Legislature did enact requires that some connection be shown
between the predicate offenses and the gang as a collective
enterprise.
21

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
that a crime may have commonly benefited a gang certainly tells
us something about the relationship between the perpetrator
and the gang, but it does not necessarily tell us how the gang
itself can be said to have “collectively engaged” in a pattern of
crime. The Attorney General acknowledged that after proving
that a predicate offense conferred a common benefit on the gang,
it is still necessary to show that the offense reflected an
“organized effort” by the criminal street gang. The Legislature’s
reference to collective engagement thus calls for an inquiry not
just into how the predicate offenses benefited the gang, but also
how the gang works together as a gang. It calls for a showing of
a connection, or nexus, between an offense committed by one or
more gang members and the organization as a whole.
This organizational nexus may be shown by evidence
linking the predicate offenses to the gang’s organizational
structure, meaning its manner of governance; its primary
activities; or its common goals and principles. By reference to
these elements of a gang’s affairs and operations, we do not
mean to overstate the degree of formality required. As we have
recognized, some gangs have a “ ‘loose’ ” structure (People v.
Ware (2022) 14 Cal.5th 151, 170), while others are “highly
ordered and disciplined,” with a “well-defined” hierarchy (People
v. Masters (2016) 62 Cal.4th 1019, 1027). Similarly, some gangs
may have loosely defined goals and principles, while others may
have clearly defined missions. Given this variability, collective
engagement will be established in different ways.
In some cases, for example, there might be evidence of a
direct order from the gang to commit specific crimes. (E.g.,
People v. Lewis (2021) 11 Cal.5th 952, 958 [the murder would
have been agreed on at a meeting called by the gang’s “ ‘ “shot
caller” ’ ”]; In re Masters (2019) 7 Cal.5th 1054, 1063 [a certain
22

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
attack “would normally have been ordered only by the highest
echelon of a gang’s leadership”].) Alternatively, evidence might
show a more general, well-understood expectation that
members must engage in certain types of offenses. (E.g., People
v. Elizalde (2015) 61 Cal.4th 523, 528 [junior members received
a general order to attack rivals to support the gang and earn
their status].) In other cases, collective engagement might be
shown by demonstrating that the offenses are reflective of the
primary activities of the gang, or else adhere to a common goal
or plan characteristic of the gang in question. (E.g., People v.
Johnson, supra, 57 Cal.4th at p. 256 [members played different
roles in carrying out the gang’s activities, either selling drugs,
patrolling the gang’s territory, or killing rivals]; People v.
Chhoun (2021) 11 Cal.5th 1, 16 [a gang’s complex robberies
followed a common plan of targeting similar victims and relying
on members to play specific roles].
The Attorney General offers several illustrations of
collective engagement. Although nominally offered in support
of the Attorney General’s common benefit argument, each in fact
illustrates the meaning of collective engagement as we have
described it. In one example, a gang tasked members with
collecting “taxes” from local businesses or drug dealers as a way
of maintaining the gang’s territory. In a second example, the
gang directed members to sell drugs in the gang’s territory with
proceeds from the sales used to benefit the gang. A third
example described a gang in which members were authorized to
attack rivals on a “green light list” maintained by the gang. And
in another scenario, discussed above, one member sold drugs for
the gang, a second murdered a rival drug dealer, and a third hid
the murder weapon. In these examples, gang members play a
role in enforcing the territory and terms of the gang’s drug trade
23

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
or, by killing certain targeted individuals, carry out an edict to
eliminate rivals who pose a threat to the gang. In all of the
examples, the predicate offenses create a common benefit to the
gang. But in all of the examples, the offenses also relate to the
essential characteristics of the criminal street gang — its
organizational structure, primary activities, or common goals
and principles.
The Attorney General’s examples thus reinforce our
understanding of the collective engagement language. The core
inquiry is whether there exists an organizational nexus between
the crime and the gang. For reasons explained above, this is
conceptually distinct from the requirement to prove that each
predicate
offense
“commonly
benefited”
the
gang
(§ 186.22(e)(1)), even though the facts necessary to prove the two
requirements will often overlap with one another. Though the
crimes in the examples above may have been committed by
individual gang members, and provided a benefit to the gang,
the undertakings reflect the collective engagement of the gang
inasmuch as there exists an organizational nexus between the
crimes and the particular characteristics of the “ ‘criminal street
gang’ ” established under section 186.22(f).
III.
Clark is entitled to a remand for further proceedings
unless the lack of instruction on new elements that apply
retroactively under In re Estrada (1965) 63 Cal.2d 740 is
harmless beyond a reasonable doubt. (People v. Cooper (2023
14 Cal.5th 735, 742; Tran, supra, 13 Cal.5th at p. 1207.) We
conclude that the lack of instruction was not harmless.
The Court of Appeal in this case held that because there
was evidence that two members of Sex Cash Money committed
24

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
crimes on separate occasions, any reasonable jury would have
concluded beyond a reasonable doubt that “members of Sex
Cash Money ‘collectively . . . have engaged in . . . a pattern of
criminal gang activity.’ (§ 186.22, subd. (f).)” (Clark, supra, 81
Cal.App.5th at p. 146.) For reasons we have explained, we do
not agree; to establish collective engagement, the prosecution
should have established a nexus between the offenses and the
gang as a collective enterprise. There is no evidence in the
record from which a jury could have found such a nexus beyond
a reasonable doubt.
The evidence of each predicate offense was a plea
agreement that contained little information besides the fact that
Ridgeway pleaded guilty to robbery and Clark pleaded guilty to
attempted residential burglary.7 Although the expert testifying
7
As indicated, the prosecution presented evidence of
additional predicate offenses: certified convictions for
Ridgeway, who pleaded guilty to a 2009 residential burglary
with a gang enhancement, and for the three gang members with
Clark during the July 2015 break-in, who each pleaded or were
found guilty of burglary for their roles in that offense. After
amendment, section 186.22 provides that at least one of the
predicate offenses must have occurred “after the effective date
of this chapter, and the last of those offenses occurred within
three years of the prior offense and within three years of the
date the current offense.” (§ 186.22(e)(1).) The amendments
also established that the currently charged crime cannot be used
as a predicate offense (id., subd. (e)(2)). As such, evidence of
Ridgeway’s 2009 burglary and the other gang members’
participation in the current offense do not qualify as predicate
offenses under the amended statute. The Attorney General
asserts that Ridgeway’s 2009 conviction qualifies under the
amended statute, “because there was another offense committed
within three years of the charged offense.” This misreads the
25

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
for the prosecution discussed the benefits that might flow to the
gang from the charged crimes, the prosecution did not present
evidence to establish whether the predicate offenses were
committed to benefit the gang, or whether there existed an
organizational nexus between those offenses and the gang as a
collective enterprise. “Under these circumstances, we cannot
conclude ‘beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.’ ” (People v. Cooper,
supra, 14 Cal.5th at p. 746.
We reverse the judgment of the Court of Appeal as to
Clark’s gang enhancement, with instructions to remand to the
superior court for further proceedings consistent with this
opinion.8 The People are free on remand to offer additional
evidence to satisfy the newly enacted requirements of section
186.22. (See People v. Cooper, supra, 14 Cal.5th at p. 746
[reversing the pre-Assem. Bill 333 gang enhancement for
timing requirements. The two 2014 convictions (one for
Ridgeway and one for Clark) are within three years of the
charged offense, but Ridgeway’s prior 2009 conviction is not
within three years of those offenses.
8
We disapprove People v. Delgado, supra, 74 Cal.App.5th
1067, to the extent it articulates an interpretation of the
collective engagement requirement different from the one we
have described here. Similarly, we disapprove of People v.
Lopez, supra, 73 Cal.App.5th 327, to the extent the court’s
implicit assumptions about the meaning of collective
engagement may conflict with this opinion. Recognizing the
conflict between the Courts of Appeal in Delgado and in this
case, the court in Rodas-Gramajo v. Superior Court (2023) 92
Cal.App.5th 656 assumed that Delgado’s interpretation applied,
requiring predicate offenses to be committed by two gang
members acting in concert. (Id. at p. 668 & fn. 7.) We
disapprove of that portion of Rodas-Gramajo v. Superior Court,
supra, 92 Cal.App.5th 656 as well.
26

PEOPLE v. CLARK
Opinion of the Court by Kruger, J.
insufficient proof and recognizing authority entitling the People
to retry the affected charges on remand].
KRUGER J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
27

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Clark

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 81 Cal.App.5th 133
Review Granted (unpublished)
Rehearing Granted

Opinion No. S275746
Date Filed: February 22, 2024

Court: Superior
County: Riverside
Judge: Bambi J. Moyer

Counsel:
Patrick Morgan Ford, under appointment by the Supreme Court, for
Defendant and Appellant.
Sylvia Perez MacDonald, Lana M. Kreidie; and William Safford for
Santa Clara County Independent Defense Counsel Office as Amicus
Curiae on behalf of Defendant and Appellant.
Sean Garcia-Leys for Peace and Justice Law Center as Amicus Curiae
on behalf of Defendant and Appellant.
Sixth District Appellate Program and Jonathan Grossman for Pacific
Juvenile Defender Center as Amicus Curiae on behalf of Defendant
and Appellant.
Mary K. McComb, State Public Defender, and Elias Batchelder,
Deputy State Public Defender, for Office of the State Public Defender
as Amicus Curiae on behalf of Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland and Charles C. Ragland, Assistant
Attorneys General, Steve Oetting, Alana Cohen Butler and Paige B.
Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Patrick Morgan Ford
Attorney at Law
1901 First Avenue, Suite 400
San Diego, CA 92101
(619) 236-0679
Paige B. Hazard
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 540-0201

Haggerty v. Thornton

admin — Thu, 08 Feb 2024 18:32:32 +0000

IN THE SUPREME COURT OF
CALIFORNIA
BRIANNA MCKEE HAGGERTY,
Plaintiff and Appellant,
v.
NANCY F. THORNTON et al.,
Defendants and Respondents.
S271483
Fourth Appellate District, Division One
D078049
San Diego County Superior Court
37-2019-00028694-PR-TR-CTL
February 8, 2024
Justice Liu authored the opinion of the Court, in which Acting
Chief Justice Kruger and Justices Corrigan, Groban, Jenkins,
Evans, and Poochigian* concurred.
*
Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

HAGGERTY v. THORNTON
S271483
Opinion of the Court by Liu, J.
This case concerns the methods for modifying a revocable
trust. Section 15402 of the Probate Code states that “[u]nless
the trust instrument provides otherwise, . . . the settlor may
modify the trust by the procedure for revocation.” (Prob. Code,
§ 15402; all undesignated statutory references are to this code.
Section 15401 sets out the procedures for revocation: Trusts
may be revoked by complying with any method provided in the
trust instrument. (§ 15401, subd. (a)(1).) If the trust
instrument explicitly makes that method exclusive, then the
trust may be revoked only in that manner. (§ 15401,
subd. (a)(2).) If not, then the trust may also be revoked by the
statutory method — “a writing, other than a will, signed by the
settlor or any other person holding the power of revocation and
delivered to the trustee during the lifetime of the settlor or the
person holding the power of revocation.” (Ibid.
It is undisputed that if the trust instrument is silent on
modification, the trust may be modified in the same manner in
which it could be revoked, either via the statutory method or via
any revocation method provided in the trust instrument. In this
case, we consider the circumstances under which the statutory
method is available for modification if the trust instrument
specifies a method for modification. We hold that under section
15402, a trust may be modified via the section 15401 procedures
for revocation, including the statutory method, unless the trust
instrument provides a method of modification and explicitly
1

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
makes it exclusive, or otherwise expressly precludes the use of
revocation procedures for modification.
I.
Brianna McKee Haggerty appeals an order of the probate
court finding a trust agreement was validly amended, thereby
excluding her from distribution. Haggerty’s aunt, Jeane M.
Bertsch, created a trust in 2015. The trust agreement included
a provision reserving “[t]he right by an acknowledged
instrument in writing to revoke or amend this Agreement or any
trust hereunder.” In 2016, Bertsch drafted an amendment
providing for a distribution to Haggerty. The amendment was
signed by Bertsch and notarized.
In 2018, Bertsch drafted an amendment providing that half
of her assets would go to various beneficiaries upon her death,
including the Union of Concerned Scientists, Patricia Galligan,
and Racquel Kolsrud, who are respondents in this case.
Haggerty was not listed as one of the beneficiaries. The 2018
amendment was signed by Bertsch but not notarized. Thus, the
2018 amendment was compliant with the statutory method but
not with the method of modification specified in the trust
instrument.
After Bertsch’s death, Haggerty filed a petition to
determine the validity of the 2018 amendment. Haggerty
argued that the amendment does not qualify as an
“acknowledged instrument” because it was not notarized and
therefore was not modified pursuant to the method of
modification specified in the trust instrument. In a minute
order, the probate court held that the 2018 amendment was
valid.
2

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
The Court of Appeal affirmed, holding that Bertsch’s 2018
amendment was a valid modification pursuant to the statutory
method. (Haggerty v. Thornton (2021) 68 Cal.App.5th 1003,
1012 (Haggerty); see §§ 15401, subd. (a)(2), 15402.) The court
concluded that the statutory method was available for
modification because Bertsch’s trust agreement “does not
distinguish between revocation and modification” and because
“the method of revocation and modification described in the
trust agreement is not explicitly exclusive.” (Haggerty, at
p. 1012.
We granted review to resolve a split of authority regarding
the circumstances under which the statutory method is
available for modification when a method of modification is
specified in the trust instrument.
II.
Assembly Bill No. 2652 (1985–1986 Reg. Sess.) enacted
sections 15401 and 15402 in 1986 as part of a general
reorganization of trust laws recommended by the California
Law Revision Commission (Commission). (See Huscher v. Wells
Fargo Bank (2004) 121 Cal.App.4th 956, 960, fn. 2 (Huscher);
Recommendation Proposing the Trust Law (Dec. 1985) 18 Cal.
Law Revision Com. Rep. (1986) pp. 567–569 (Recommendation
Proposing the Trust Law).) Revocation was previously governed
by Civil Code former section 2280. (Huscher, at p. 961.) No
statute specifically addressed modification. Rather, courts held
that, in general, the power of revocation implied the power of
modification, and they applied the rules governing trust
revocation to trust modification. (Id., at p. 962, fn. 5; see Estate
of Lindstrom (1987) 191 Cal.App.3d 375, 385, fn. 11
[“[R]evocation and amendment are fungible. ‘The unrestricted
3

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
power to revoke implies a power to amend without revoking; i.e.,
it is unnecessary for the trustor to take the circuitous steps of
complete revocation and creation of a new trust with the desired
changes.’ ”].
Since 1986, two separate statutory provisions have
governed trust revocation and modification. Section 15401
governs the procedures for revocation. Under this provision, a
revocable trust “may be revoked in whole or in part by any of the
following methods: [¶] (1) By compliance with any method of
revocation provided in the trust instrument. [¶] (2) By a writing,
other than a will, signed by the settlor or any other person
holding the power of revocation and delivered to the trustee
during the lifetime of the settlor or the person holding the power
of revocation.” (§ 15401, subd. (a)(1)–(2).) We will refer to the
second method as the statutory method. Section 15401 further
provides: “If the trust instrument explicitly makes the method
of revocation provided in the trust instrument the exclusive
method of revocation, the trust may not be revoked pursuant to
[the statutory method].” (§ 15401, subd. (a)(2).
Section 15402 governs the procedures for modification. It
provides: “Unless the trust instrument provides otherwise, if a
trust is revocable by the settlor, the settlor may modify the trust
by the procedure for revocation.” (§ 15402.) “Thus, if the trust
instrument is silent on modification, the trust may be modified
in the same manner in which it could be revoked,” either via the
statutory method or via the revocation method provided in the
trust instrument. (King v. Lynch (2012) 204 Cal.App.4th 1186,
1192 (King); accord, Diaz v. Zuniga (2023) 91 Cal.App.5th 916,
922 (Diaz); Balistreri v. Balistreri (2022) 75 Cal.App.5th 511,
516 (Balistreri); Pena v. Dey (2019) 39 Cal.App.5th 546 (Pena).
But a revocable trust may not be modified “by the procedure for
4

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
revocation” where the trust instrument “provides otherwise.”
(§ 15402.) This case turns on the meaning of “provides
otherwise.”
The Courts of Appeal have put forward three
interpretations. One interpretation, advanced by King, is that
“ ‘[u]nless the trust instrument provides otherwise’ indicates
that if any modification method is specified in the trust, that
method must be used to amend the trust.” (King, supra, 204
Cal.App.4th at p. 1193; accord, Diaz, supra, 91 Cal.App.5th at
p. 924 [following King]; Balistreri, supra, 75 Cal.App.5th at
p. 518 [same]; Pena, supra, 39 Cal.App.5th at p. 552 [same]; see
also Conservatorship of Irvine (1995) 40 Cal.App.4th 1334, 1334
(Irvine). ) A second interpretation, put forward by Huscher and
adopted by the King dissent and by the Court of Appeal in this
case, is that “unless the trust instrument provides otherwise”
means “unless the trust provides a modification procedure and
explicitly makes that method exclusive.” (Huscher, supra,
121 Cal.App.4th at p. 967; see Haggerty, supra, 68 Cal.App.5th
at p. 1012; King, at p. 1197 (dis. opn. of Detjen, J.).) The Court
of Appeal here also advanced a third interpretation: that
“ ‘[u]nless the trust instrument provides otherwise’ ” also means
“unless the trust instrument distinguishes between revocation
and modification.” (Haggerty, at p. 1011.
A.
To resolve this issue, we begin with the text of section
15402. As noted, the phrase “[u]nless the trust instrument
provides otherwise” qualifies the provision that follows it, i.e.,
that the settlor of a revocable trust “may modify the trust by the
procedure for revocation.” (§ 15402.) The most natural reading
of this sentence is that the settlor may modify the trust using
5

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
any procedure for revocation unless the trust instrument says
that the settlor may not (i.e., “provides otherwise”). This is
supported by the plain meaning of the term “otherwise.” (See,
e.g., Marx v. General Revenue Corp. (2013) 568 U.S. 371, 377 [“A
statute ‘provides otherwise’ than Rule 54(d)(1) if it is ‘contrary’
to the Rule.”].) A trust term would be contrary to the
authorization provided in section 15402 if it were to preclude the
use of any of the section 15401 revocation procedures for
modification. It could do so by specifying an exclusive method
of modification in the trust instrument (Haggerty, supra, 68
Cal.App.5th at p. 1012; King, 204 Cal.App.4th at p. 1196 (dis.
opn. of Detjen, J.); Huscher, supra, 121 Cal.App.4th at p. 967) or
by otherwise precluding modification via the revocation
procedures provided in section 15401. But a trust instrument
that merely specifies a method of modification without limiting
settlors to the use of that method does not preclude the use of
the revocation procedures and therefore does not “provide[]
otherwise” from the general rule. (§ 15402.
This interpretation is consistent with the Third
Restatement of Trust Laws. (See Estate of Giraldin (2012) 55
Cal.4th 1058, 1072 [“California courts have considered the
Restatement of Trusts in interpreting California trust law.”].
The Restatement provides: “If the terms of the trust reserve to
the settlor a power to . . . amend the trust exclusively by a
particular procedure, the settlor can exercise the power only by
substantial compliance with the method prescribed.” (Rest.3d
Trusts, § 63, com. i.) However, if “the terms of the trust provide
a method for . . . amendment” but “do not make that method
exclusive, . . . the settlor’s [modification] power can be exercised
either in the specified manner or by a method [that is available
6

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
when no modification method is specified in the trust
instrument].” (Id., § 63, com. i; id., § 63, com. h.
In this case, the Court of Appeal held that a trust
instrument may preclude the use of revocation procedures for
modification by “distinguish[ing] between revocation and
modification.” (Haggerty, supra, 68 Cal.App.5th at p. 1011.) On
this view, by treating revocation and modification differently —
such as by specifying different procedures for revocation and
modification or by specifying a method for modification but not
for revocation — the settlor “provides otherwise” from the
general rule that a settlor “may modify the trust by the
procedure for revocation.” (§ 15402.) The court reasoned that
distinguishing between revocation and modification is
“ ‘ “contrary” ’ ” to the general rule that the method of
modification is the same as the method of revocation. (Haggerty,
at p. 1011.
In King, the court held that a trust instrument “provides
otherwise” from the general rule if any modification method is
specified in the trust, regardless of whether that method is made
exclusive. (King, supra, 204 Cal.App.4th at p. 1193; accord,
Diaz, supra, 91 Cal.App.5th at p. 924; Balistreri, supra, 75
Cal.App.5th at p. 518; Pena, supra, 39 Cal.App.5th at p. 552.
“[W]hen the Legislature enacted sections 15401 and 15402, it
differentiated between trust revocations and modifications.
This indicates that the Legislature no longer intended the same
rules to apply to both revocation and modification. [¶] If we were
to . . . hold that a trust may be modified by the revocation
procedures set forth in section 15401 unless the trust explicitly
provides that the stated modification method is exclusive,
section 15402 would become surplusage. Rather than enacting
section 15402, the Legislature could have combined revocation
7

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
and modification into one statute. Moreover, . . . the Legislature
knew how to limit the exclusivity of a revocation method
provided in a trust and chose not to impose such a limitation on
modifications in section 15402.” (King, at p. 1193.
B.
Despite this natural reading of the word “otherwise,”
several Courts of Appeal have interpreted section 15402
differently. Even if the text is susceptible to more than one
reasonable construction, legislative history supports the
interpretation above. The Legislature intended section 15402 to
codify the preexisting rule that the power of revocation implies
the power of modification and to expand the availability of the
statutory method for both revocation and modification.
Assembly Bill No. 2652 (1985–1986 Reg. Sess.) was
enacted “to effectuate recommendations of the California Law
Revision Commission.” (Exec. Sect. John H. DeMoully, letter to
Chief Clerk James D. Driscoll (May 2, 1986) 4 Assem. J. (1985–
1986 Reg. Sess.) p. 7308.) The Legislature thus relied on the
intent and commentary of the Commission in passing the bill.
(See e.g., Sen. Com. on Judiciary, Analysis of Assem. Bill No.
2652 (1985–1986 Reg. Sess.) as amended June 10, 1986, p. 7
[describing the “[n]eed for legislation” in terms of what “[t]he
Commission believes” (underscoring omitted)]; ibid. [“This bill
is a result of extensive study and recommendations by the
California [L]aw Revision Commission.”].
In explaining its decision to recommend codifying section
15402, the Commission said: “Under general principles the
settlor, or other person holding the power to revoke, may modify
as well as terminate a revocable trust. [Fn. omitted.] The
proposed law codifies this rule and also makes clear that the
8

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
method of modification is the same as the method of
termination, barring a contrary provision in the trust.”
(Recommendation Proposing the Trust Law, supra, at p. 568;
see also id. at p. 636 [“Power to revoke includes power to modify”
(boldface omitted)]; ibid. [“Section 15402 . . . codifies the general
rule that a power of revocation implies the power of
modification”].) The Commission’s commentary makes clear
that section 15402 was enacted to codify the preexisting rule
that the power of revocation includes the power of modification,
and thus an available method of revocation is also an available
method of modification unless a trust term precludes the use of
any method of revocation for modification. (Recommendation
Proposing the Trust Law, at p. 568.) Section 15402 was not
added, as King contends, to establish a different rule from
section 15401. (King, supra, 204 Cal.App.4th at p. 1193.
Nothing in the Commission’s statements proposed treating
modification differently from revocation or changing the
preexisting rule. In fact, all of the Commission’s statements
about modification indicate that modification should be
governed by the procedures for revocation unless the settlor
makes clear an intention to establish a different rule.
King contends that if section 15402 merely incorporated
the procedures of section 15401 for modifications, then section
15402 would be surplusage. (King, supra, 204 Cal.App.4th at
p. 1193.) But the Legislature had reason to accept the
Commission’s recommendation and codify the common law rule
that revocation procedures can be used for modification. An
appellate court had expressed uncertainty about the legal
underpinnings of the rule. (See Heifetz v. Bank of America
(1957) 147 Cal.App.2d 776, 781 [“ ‘Does power to revoke include
power to amend? It has been held that it does not where the
9

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
only power reserved is to revoke the trust in its entirety. Where
the terms of the trust are less explicit, the answer is more
doubtful. The Restatement [of Trusts] (§ 331[, com.] g) is
favorable to the view that the power to amend is included in the
power to revoke. The authorities upon the point do not seem to
be numerous. As a practical proposition, the principle referred
to, if it exists, is too uncertain, too dependent on language
furnishing only disputable evidence of intent, to provide a safe
working rule.’ ”].) In the Commission’s reports recommending
that the Legislature enact section 15402, it cited Heifetz,
suggesting that the legal uncertainty Heifetz identified may
have contributed to its decision to recommend formalizing the
common law rule. (See, e.g., Recommendation Proposing the
Trust Law, supra, at pp. 568, fn. 253, 636.
A later amendment to section 15401 underscores that the
Legislature intended revocation procedures to govern
modification. In 1988, in response to a proposal by the
Commission, the Legislature enacted a change to what is now
subdivision (c) of section 15401 relating to attorneys in fact. The
relevant statutory provision previously stated that “[a] trust
may not be revoked by an attorney.” (Stats. 1986, ch. 820, § 40,
p. 2756, italics added.) The Legislature amended the statute to
state that “[a] trust may not be modified or revoked by an
attorney.” (Stats. 1988, ch. 113, § 19, p. 481, italics added.) In
proposing this change, the Commission explained that its goal
was “to make clear that the rule applicable to revocation by an
attorney in fact applies to modification,” which “is consistent
with the rule provided in section 15402.” (Recommendations
Relating to Probate Law (Dec. 1987) 19 Cal. Law Revision Com.
Rep. (1988) p. 1097.) There is no evidence that the Legislature
intended to depart from this goal in enacting the amendment.
10

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
It is also relevant that the Commission proposed to make
the statutory method more readily available for modification
and revocation. The Commission repeatedly indicated that the
power of revocation historically has implied the power of
modification and that the Commission’s intention was to codify
that rule. (See, e.g., Recommendation Proposing the Trust Law,
supra, at pp. 568, 636.) Further, the Commission expressly
stated its goal of expanding the availability of the statutory
method for revocation. (Id., at p. 568.) These statements
suggest that the Commission and, in turn, the Legislature
intended to expand the availability of the statutory method not
solely for revocation but also for modification, a process that the
Commission viewed as implicit in the power of revocation.
In explaining its proposal to expand the availability of the
statutory method, the Commission said that under Civil Code
former section 2280, “California courts generally . . . held that
where the trust instrument prescribes a method of revocation,
the prescribed procedure must be followed rather than the
statutory method. [Fn. omitted.] This rule [was] defended on
the grounds that the settlor may wish to establish a more
complicated manner of revocation than that provided by statute
where there is a concern about ‘future senility or future undue
influence while in a weakened condition.’ ” (Recommendation
Proposing the Trust Law, supra, at pp. 567–568.) However, the
Commission pointed out, this prior “rule may be criticized as
defeating the clear intention of the settlor who attempts to
revoke a revocable trust by the statutory method, in
circumstances that do not involve undue influence or a lack of
capacity. In fact, the settlor may have forgotten about the
method provided in the trust, or may not be aware of the case-
law rule [that prescribing another procedure in the trust
11

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
instrument would displace the statutory method].” (Id., at
p. 568.
Taking these competing concerns into account, the
Commission proposed section 15401, subdivision (a)(2), which
was adopted by the Legislature to prioritize the availability of
the statutory method while allowing settlors to bind themselves
to more onerous procedures if they desire. The Commission
explained, “The proposed law adopts a compromise position that
makes available the statutory method of revoking by delivery of
a written instrument to the trustee during the settlor’s lifetime
except where the trust instrument explicitly makes exclusive
the method of revocation specified in the trust. This allows a
settlor to establish a more protective revocation scheme, but also
honors the settlor’s intention where the intent to make the
scheme exclusive is not expressed in the trust instrument.”
(Recommendation Proposing the Trust Law, supra, at p. 568.
The Court of Appeal in this case said that a trust
instrument precludes the use of revocation procedures for
modification when it “distinguishes between revocation and
modification.” (Haggerty, supra, 68 Cal.App.5th at p. 1011.
However, the mere fact that a trust instrument distinguishes
between modification and revocation by authorizing certain
procedures for revocation and other procedures for modification
does not suffice to preclude the use of revocation procedures for
modification. The legislative history supports the view that the
settlor may modify the trust using any procedure for revocation
unless the trust instrument says the settlor may not. If a trust
were to provide that it “may only be modified by an
acknowledged instrument in writing,” then the trust would
preclude modification via any different method of revocation,
including the statutory method, regardless of whether the trust
12

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
distinguishes between revocation and modification. But if a
trust were to simply provide that it “may be modified by an
acknowledged instrument in writing,” then the trust would not
preclude modification via any method of revocation, again
regardless of whether the trust treats modification and
revocation differently.
In sum, legislative history supports the view that the
statutory method is available for modification unless the trust
instrument “provides otherwise” by expressly precluding it or by
explicitly making a different procedure exclusive.
C.
Haggerty and amicus curiae argue that policy reasons
support making modification more difficult than revocation.
According to Haggerty, “[t]he Legislature had reason to make
modification presumptively more difficult than revocation. An
unscrupulous caretaker or counsel cannot usurp an elder’s
assets by inducing her to revoke the trust, because intestacy
laws would keep the estate within the family. Only if the trustor
modified the trust and selected a different beneficiary could the
usurper take her assets.” But, as respondents note, treating
modification more restrictively than revocation is not
necessarily more protective of settlors: “The [undue] influencer
could induce the settlor to simply revoke the trust and create a
new one, which has the same effect as modifying the trust. And
even without either revocation or modification, an influencer
can induce a settlor to transfer assets out of the trust and into
the influencer’s control.” Further, the influencer may well “be a
family member who would inherit if the trust is revoked.”
In any event, although there are reasons why the
Legislature could have decided to treat modification more
13

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
restrictively, the question here is what policy choices the
Legislature actually made, not what choices it reasonably could
have made. As noted (ante, at pp. 11–12), the Commission
considered the policy concern that more restrictive procedures
for revocation and modification might better protect settlors
from undue influence. After weighing the various policy
considerations, it proposed a “compromise position” that
preferences the availability of the statutory method unless the
settlor explicitly binds himself or herself to a different rule.
(Recommendation Proposing the Trust Law, supra, at p. 568.
We presume that when the Legislature adopted this proposal, it
was mindful of existing protections against the dangers raised
by Haggerty and amicus curiae, including the tort principles of
undue influence and fraud. (See, e.g., Tuolumne Jobs & Small
Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039
[“ ‘The Legislature is presumed to be aware of all laws in
existence when it passes or amends a statute.’ ”].
Alternative policy arguments regarding whether
modifications should be treated more restrictively than
revocations are best directed to the Legislature, which may
amend the trust laws if it chooses. Our task is to give effect to
the statute as we find it. Under the statute, the procedures for
revocation can be used for modification unless the trust
instrument provides a method of modification and makes it
exclusive, or otherwise expressly precludes the use of revocation
procedures for modification. We disapprove King v. Lynch,
supra, 204 Cal.App.4th 1186; Balistreri v. Balistreri, supra, 75
Cal.App.5th 511; Diaz v. Zuniga, supra, 91 Cal.App.5th 916;
Pena v. Dey, supra, 39 Cal.App.5th 546; Conservatorship of
Irvine, supra, 40 Cal.App.4th 1334; and Haggerty v. Thornton,
14

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
supra, 68 Cal.App.5th 1003, to the extent that they are
inconsistent with this holding.
Finally, Haggerty argues that our decision should apply
only prospectively and that King should control this case
because “it was the prevailing law when Ms. Bertsch devised her
trust.” But the court below was “ ‘not bound by an opinion of
another District Court of Appeal.’ ” (People v. Kim (2011) 193
Cal.App.4th 836, 847.) Moreover, “ ‘judicial construction of a
statute is an authoritative statement of what the statute meant
before as well as after the decision of the case giving rise to that
construction.’ ” (Vazquez v. Jan-Pro Franchising Internat., Inc.
(2021) 10 Cal.5th 944, 951, quoting Rivers v. Roadway Express,
Inc. (1994) 511 U.S. 298, 312–313). This rule generally applies
absent narrow exceptions based on fairness and public policy.
(Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858,
878.) Haggerty does not argue that any of those exceptions
apply here, and we see no reason to depart from the usual rule.
15

HAGGERTY v. THORNTON
Opinion of the Court by Liu, J.
CONCLUSION
We affirm the judgment of the Court of Appeal and
remand the case for further proceedings consistent with this
opinion.
LIU, J.
We Concur:
KRUGER, Acting C. J.
CORRIGAN, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
POOCHIGIAN, J.*
*
Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
16

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Haggerty v. Thornton

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 68 Cal.App.5th 1003
Review Granted (unpublished)
Rehearing Granted

Opinion No. S271483
Date Filed: February 8, 2024

Court: Superior
County: San Diego
Judge: Julia Craig Kelety

Counsel:
Blut Law Group, Elliot S. Blut; Keiter Appellate Law and Mitchell
Keiter for Plaintiff and Appellant.
Ragghianti Freitas and Paul B. Gruwell for Sal J. Balistreri as Amicus
Curiae on behalf of Plaintiff and Appellant.
Artiano Shinoff, Howard A. Kipnis, Steven J. Barnes; Spero Law Office
and Leah Spero for Defendant and Respondent Patricia Galligan.
Cross Law and Oleg Cross for Defendant and Respondent Racquel
Kolsrud.
Higgs Fletcher & Mack, John Morris, Roland H. Achtel, Scott J. Ingold
and Rachel M. Garrard for Defendant and Respondent Union of
Concerned Scientists.

No appearance for Defendants and Respondents San Diego Humane
Society, Nancy F. Thornton, Jill Bousman, George Bousman, Jack
Hebert, Larry Guentherman, Gail Spielman and Dean Spielman.
Hartog, Baer, Zabronsky & Verriere, David W. Baer and Kevin P.
O’Brien for Mary A. Nivala Balistreri as Amicus Curiae on behalf of
Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Mitchell Keiter
Keiter Appellate Law
424 South Beverly Drive
Beverly Hills, CA 90212
(310) 553-8533, ext. 145
Leah Spero
Spero Law Office
255 Kansas Street, Suite 340
San Francisco, CA 94103
(415) 565-9600
Roland H. Achtel
Higgs Fletcher & Mack LLP
401 West A Street, Suite 2600
San Diego, CA 92101
(619) 236-1551

In re Vaquera

admin — Mon, 05 Feb 2024 20:53:07 +0000

IN THE SUPREME COURT OF
CALIFORNIA
In re OSCAR MANUEL VAQUERA
on Habeas Corpus.
S258376
Fourth Appellate District, Division Three
G056786
Orange County Superior Court
12NF0653
February 5, 2024
Justice Groban authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Jenkins, and Evans concurred.

In re VAQUERA
S258376
Opinion of the Court by Groban, J.
California’s “One Strike” law, codified at Penal Code
section 667.61, is an alternative sentencing scheme that applies
when the prosecution pleads and proves specific aggravating
circumstances in connection with certain sex offenses.1 The
prosecution charged Oscar Manuel Vaquera by information with
two counts of an offense covered by the One Strike law —
committing a lewd act on a child under the age of 14 — and a
jury convicted him on both counts. (§§ 288, subd. (a), 667.61,
subd. (c)(8).) In this habeas corpus proceeding, Vaquera
challenges the 25-year-to-life sentence the trial court imposed
for count 2.2
In connection with this count, the prosecution alleged a
multiple victim circumstance under subdivision (b) of the One
Strike law, which provides for a sentence of 15 years to life
“[e]xcept as provided in subdivision (a), (j), (l), or (m).” (§ 667.61,
subd. (b); see id., subd. (e)(4).)3 After the jury convicted Vaquera
and found true the multiple victim circumstance, the prosecutor
filed a sentencing brief requesting 15 years to life on count 2.
But later, just days before Vaquera’s sentencing hearing, the
1
All further citations to statutes are to the Penal Code.
2
Vaquera does not challenge the 15-year-to-life sentence
the trial court imposed for count 1.
3
All further citations to statutory subdivisions are to the
One Strike law, section 667.61.
1

In re VAQUERA
Opinion of the Court by Groban, J.
prosecutor filed a second sentencing brief invoking subdivision
(j)(2) of the One Strike law, which provides for a sentence of 25
years to life when the victim is under the age of 14, and arguing
Vaquera should be sentenced under that provision on count 2.
Vaquera contends the court’s imposition of a 25-year-to-
life sentence for count 2 violated due process guarantees
because the information did not provide him fair notice of the
prosecution’s election to seek that sentence. He further
contends that he is entitled to be resentenced to 15 years to life
on count 2 because the due process violation deprived him of the
opportunity to consider his exposure under subdivision (j)(2
when making key decisions about his defense. The Attorney
General argues that the information provided Vaquera fair
notice and that to the extent the information was ambiguous as
to the prosecution’s intent to seek sentencing under subdivision
(j)(2), Vaquera is not entitled to resentencing on that basis. We
agree with Vaquera and direct the trial court to strike his 25-
year-to-life sentence on count 2 and resentence him to 15 years
to life on that count.
I. BACKGROUND
A. The One Strike Law
“[T]he One Strike law sets forth an alternative and
harsher sentencing scheme for certain sex crimes . . . .” (People
v. Anderson (2009) 47 Cal.4th 92, 107 (Anderson I).) The law
applies when the prosecution pleads and proves specific factual
circumstances in addition to the elements of the underlying sex
offense. (Id. at p. 102.) When the prosecution is pursuing
sentencing under the One Strike law, the jury decides first
whether the prosecution has proved the elements of the charged
offense; if the jury convicts, it then independently considers
2

In re VAQUERA
Opinion of the Court by Groban, J.
whether the prosecution has proved the circumstances alleged
to support sentencing under the One Strike law. (Anderson I, at
p. 102.
If the prosecution has not pled and proved a One Strike
law allegation, the usual, determinate sentence for the sex crime
applies. (See § 1170, subds. (a)(3), (b).) For example, for a
violation of section 288, subdivision (a) — the provision under
which Vaquera was convicted — the Penal Code prescribes a
sentence of three, six, or eight years in state prison. (Ibid.
When, however, a jury has found true a One Strike law
allegation, the offense generally will be punishable by an
indeterminate sentence of either 15 years to life or 25 years to
life. (See § 667.61, subds. (a)–(e).) As relevant here, under
subdivision (b), the sentence is 15 years to life if the jury has
found the crime was committed under one of the circumstances
listed in subdivision (e) of the One Strike law, among which is
the multiple victim circumstance. (§ 667.61, subds. (b), (e)(4).
This general scheme is subject to exceptions added by the
Chelsea King Child Predator Prevention Act of 2010 (Stats.
2010, ch. 219, § 16) (Chelsea’s Law), codified in subdivisions (j),
(l), and (m). (See § 667.61, subd. (b) [“[e]xcept as provided in
subdivision (a), (j), (l), or (m) . . .”].) Those subdivisions
prescribe increased punishments of 25 years to life or life
without the possibility of parole when the prosecution has pled
and proved a One Strike circumstance involving a minor victim.
(See § 667.61, subds. (j), (l), (m).) Among these circumstances is
subdivision (j)(2), under which Vaquera was sentenced on
count 2, which provides for a sentence of 25 years to life for “[a]
person who is convicted of an offense specified in subdivision (c
3

In re VAQUERA
Opinion of the Court by Groban, J.
under one of the circumstances specified in subdivision (e), upon
a victim who is a child under 14 years of age.”
B. Procedural History
In an interview conducted as part of a child pornography
investigation, Vaquera made incriminating admissions to the
police about his conduct toward two children.4 The prosecution
charged Vaquera by information with two counts — a separate
count as to each of the two children — of committing “a lewd and
lascivious act upon and with the body” of “a child under the age
of fourteen (14) years, with the intent of arousing, appealing to,
and gratifying the lust, passions, and sexual desires of the
defendant and the child” in violation of section 288, subdivision
(a).5
The information also contained a One Strike law
allegation as to each of these two counts. The allegation
concerning the count at issue here read in full: “As to count(s) 2,
it is further alleged pursuant to Penal Code sections
667.61(b)/(e)(4), that in the commission of the above offense,
defendant OSCAR MANUEL VAQUERA committed an offense
specified in Penal Code section 667.61(c) against more than one
victim.” As noted above, subdivision (b) of the One Strike law
prescribes a 15-year-to-life sentence for a conviction of one of the
offenses listed in subdivision (c) when the jury finds true one of
the circumstances specified in subdivision (e). The offense of
4
The evidence at trial showed that Vaquera, who shared an
apartment with the victims’ family, molested the two children
and videotaped them and another child through a hole in the
bathroom wall.
5
The information also alleged child pornography charges
that are not relevant to our analysis.
4

In re VAQUERA
Opinion of the Court by Groban, J.
which Vaquera was convicted — committing a lewd act in
violation of section 288, subdivision (a) — is among the offenses
listed in subdivision (c). Subdivision (e)(4) sets out the multiple
victim circumstance, which applies when a defendant is
convicted in a single case of committing an offense listed in
subdivision (c) against multiple victims.
The One Strike law allegation as to count 2 did not include
a citation to subdivision (j)(2) — the provision under which the
trial court ultimately sentenced Vaquera to 25 years to life. Nor
did the allegation specify that the victim was under 14 years
old — the fact that would trigger application of subdivision (j)(2
to a crime otherwise punishable under subdivision (b). (See §
667.61, subd. (j)(2) [providing for a 25-year-to-life sentence when
the defendant was “convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of
age” (italics added)].) And the allegation did not otherwise
specify that the prosecution was seeking a sentence of 25 years
to life based on the victim’s age rather than the 15-year-to-life
sentence generally provided for in subdivision (b).
The jury convicted Vaquera as charged and found true the
One Strike multiple victim allegations as to both counts. In its
initial sentencing brief, the prosecution asked the court to
impose a sentence of 15 years to life for count 2, explaining:
“Counts 1 and 2 are convictions for [section] 288(a) with a
multiple victim ‘One Strike’ enhancement under Penal Code
section 667.61(b)/(e)(4) and (5). The penalty for each count is an
indeterminate sentence of 15 years to life, with the court holding
the option to run the counts concurrently or consecutively to
each other.” The prosecution requested that Vaquera be
sentenced to “a minimum of 30 years to life” on all counts.
5

In re VAQUERA
Opinion of the Court by Groban, J.
A few weeks later, just four days before the sentencing
hearing, the prosecution filed a new sentencing brief. In this
second brief, the prosecution informed Vaquera for the first time
that it was seeking a sentence of 25 years to life on count 2. The
brief explained that Chelsea’s Law — which had taken effect
two years before the prosecution filed the information in
Vaquera’s case and almost four years before it submitted its
second sentencing brief — had added subdivision (j)(2) to the
One Strike law. The brief argued that this amendment
increased the sentence for an offense specified in subdivision (c
involving multiple victims from 15 years to life to 25 years to life
whenever the victim was under 14 years old. Because the
conduct alleged in count 1 predated the Chelsea’s Law
amendments, the prosecution acknowledged that Vaquera could
be sentenced only to 15 years to life on that count. As to the
offense alleged in count 2, however, which occurred after the
Chelsea’s Law amendments took effect, the prosecution
contended that the One Strike law required the trial court to
impose a 25-year-to-life sentence. The prosecution’s new brief
urged the court to impose the sentences on the two counts
consecutively and sentence Vaquera to “a minimum of 40 years
to life” — 10 years longer than it requested in its initial
sentencing brief.
The court sentenced Vaquera to 25 years to life on count 2
and 15 years to life on count 1, to be served concurrently, for a
combined sentence of 25 years to life. Vaquera appealed but did
not challenge the legality of his sentence. The Court of Appeal
affirmed, and we denied review.
The following year, the Department of Corrections and
Rehabilitation (CDCR) sent a letter to the trial court inquiring
about Vaquera’s sentence. The letter pointed out that although
6

In re VAQUERA
Opinion of the Court by Groban, J.
the information had alleged a multiple victim circumstance
under subdivision (b) of the One Strike law, which provides for
a 15-year-to-life sentence, Vaquera had been sentenced to
25 years to life on count 2. CDCR inquired whether the court
had intended to sentence Vaquera under subdivision (b). To
address CDCR’s inquiry, the court ordered briefing and held a
hearing, after which it decided to leave intact Vaquera’s 25-year-
to-life sentence for count 2 under subdivision (j)(2).
Vaquera then filed a petition for writ of habeas corpus in
the Court of Appeal, claiming the trial court unlawfully imposed
the 25-year-to-life sentence for count 2 because he did not have
fair notice that he faced 25 years to life on that count. The Court
of Appeal summarily denied relief, Vaquera sought review in
this court, and we granted the petition and transferred the case
back to the Court of Appeal with directions to issue an order to
show cause.
The Court of Appeal issued the order to show cause. In
the return, the Attorney General denied that the information
failed to provide Vaquera fair notice that he could be sentenced
to 25 years to life on count 2 under the One Strike law. The
parties agreed that no evidentiary hearing was necessary. After
oral argument, the court denied relief in a published opinion, In
re Vaquera (2019) 39 Cal.App.5th 233 (Vaquera).
The Court of Appeal rejected as “fundamentally mistaken”
Vaquera’s contention that “the People could have elected to
pursue a prison term of 15 years to life under section 667.61,
subdivision (b), rather than a prison term of 25 years to life
under section 667.61, subdivision (j)(2).” (Vaquera, supra,
39 Cal.App.5th at pp. 244–245.) It observed that “[s]ection
667.61, subdivision (b), requires a sentence of 15 years to life
7

In re VAQUERA
Opinion of the Court by Groban, J.
‘[e]xcept as provided in subdivision . . . (j) . . . .’ ” (Id. at p. 245.
It concluded that the prosecution provided Vaquera fair notice
that he could be sentenced under subdivision (j)(2) by pleading
“multiple victim allegations for qualifying sex offenses in which
the victims were under 14 years of age.” (Vaquera, at p. 245.
The Court of Appeal reasoned that because the jury necessarily
found that the victims were under 14 years old when it convicted
Vaquera on counts 1 and 2, “the trial court was required to
impose a 25-year-to-life sentence.” (Ibid.
The Court of Appeal expressly disagreed with People
v. Jimenez (2019) 35 Cal.App.5th 373 (Jimenez). (See Vaquera,
supra, 39 Cal.App.5th at p. 244.) In Jimenez, the court had held
it violated due process to sentence a similarly situated
defendant to 25 years to life under subdivision (j)(2) because “the
information only informed [the defendant] he could be sentenced
to terms of 15 years to life under Penal Code section 667.61,
subdivisions (b) and (e) for committing the alleged offenses
against multiple victims.” (Jimenez, at p. 397.
We granted Vaquera’s petition for review to resolve this
split of authority.
II. DISCUSSION
Vaquera contends here, as he did in the Court of Appeal,
that his sentence for count 2 is unlawful because the information
did not provide fair notice of the specific One Strike sentence he
faced. He argues he had a constitutional right to notice that the
prosecution was seeking a sentence of 25 years to life under
subdivision (j)(2) based on the victim’s age, rather than 15 years
to life under subdivision (b) based on the multiple victim
circumstance alone. He further contends he is entitled to be
resentenced to 15 years to life on count 2 because the violation
8

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Opinion of the Court by Groban, J.
of this right deprived him of the opportunity to consider his
exposure to additional prison time when making key decisions
about how to conduct his defense. The Attorney General argues
that the information provided Vaquera fair notice of the
sentence he faced on count 2 by way of the cross-reference to
subdivision (j) in the text of subdivision (b) and that if the
prosecution erred in failing to plead the One Strike
circumstance with greater specificity, Vaquera is not entitled to
resentencing on that basis.
We begin by considering what constitutes fair notice in
this context.
A. Criminal Defendants Have a Constitutional
Right to Fair Notice of Their Sentencing
Exposure and the Factual Basis for That
Exposure
A defendant has a due process right to fair notice of any
sentencing allegation that, if proven, will increase the
punishment for a crime. (People v. Anderson (2020) 9 Cal.5th
946, 953 (Anderson II); People v. Mancebo (2002) 27 Cal.4th 735,
747 (Mancebo).) In the sentencing enhancement context, the
touchstone of fair notice is whether the accusatory pleading
enables the defense to predict the sentence the defendant faces
if convicted. To enable a defendant to make this prediction, an
accusatory pleading must provide the defendant with fair notice
of the factual basis on which the prosecution is seeking an
increased punishment and of “the potential sentence.”
(Anderson II, at p. 956.
When the prosecution has not alleged a particular
sentencing enhancement in connection with a specific count, a
“defendant is ordinarily entitled to assume the prosecution
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Opinion of the Court by Groban, J.
made a discretionary choice not to pursue the enhancement . . .
and to rely on that choice in making decisions such as whether
to plead guilty or proceed to trial.” (Anderson II, supra,
9 Cal.5th at p. 956.) Since an accusatory pleading that fails to
inform the defendant that the prosecution is pursuing a
particular sentencing enhancement in connection with a specific
count does not allow the defendant to predict the potential
sentence, such a pleading does not provide fair notice. (See id.
at pp. 956–957.
Like a sentencing enhancement allegation, a “One Strike
allegation exposes a defendant to greater punishment than
would be authorized by a verdict on the offense alone.”
(Anderson I, supra, 47 Cal.4th at p. 108.) Without a true finding
on a One Strike allegation, the court may not apply the lengthier
sentences provided for in the One Strike law. (Anderson I, at
p. 108, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi) [“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”].) Accordingly, we have held the
prosecution must provide the defendant “fair notice of the
qualifying statutory circumstance or circumstances that are
being pled, proved, and invoked in support of One Strike
sentencing.” (Mancebo, supra, 27 Cal.4th at p. 754.
The One Strike law contains an express pleading
requirement: “The penalties provided in this section shall apply
only if the existence of any circumstance specified in subdivision
(d) or (e) is alleged in the accusatory pleading pursuant to this
section, and is either admitted by the defendant in open court or
found to be true by the trier of fact.” (§ 667.61, subd. (o).
Vaquera does not argue that the prosecution violated this
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Opinion of the Court by Groban, J.
statutory requirement, which by its terms does not apply to
subdivision (j)(2) so is not directly implicated here. Accordingly,
we consider the question before us — whether the One Strike
allegation provided fair notice that the prosecution was seeking
a 25-year-to-life sentence under subdivision (j)(2) — exclusively
under the rubric of due process. (See Jimenez, supra,
35 Cal.App.5th at pp. 396–397 [satisfying statutory pleading
requirement, where applicable, is necessary but not sufficient to
support application of alternative sentencing scheme under One
Strike law; due process must also be satisfied]; cf. Anderson II,
supra, 9 Cal.5th at p. 953 [“Beneath . . . statutory pleading
requirements lies a bedrock principle of due process.”].)6
The Attorney General argues that due process does not
require the prosecution to notify the defendant of the specific
One Strike sentence it is seeking. In his view, the prosecution
provides fair notice so long as it alleges the facts that support
the One Strike sentence somewhere in the charging document
and generally apprises the defendant of the potential for an
enhanced penalty. In support of this argument, he cites to
People v. Thomas (1987) 43 Cal.3d 818 (Thomas), in which we
held that a pleading that alleged a general charge of
manslaughter put the defendant on notice that he could be
convicted of either voluntary or involuntary manslaughter. (Id.
at p. 828.) The Attorney General reads Thomas as supporting
his argument that due process does not require the prosecution
6
It is unclear why, in enacting Chelsea’s Law, the
Legislature did not amend subdivision (o) to say that the express
pleading requirement applies to the circumstances specified in
subdivisions (j), (l), and (m) as well as those specified in (d) and
(e). It may wish to do so now.
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Opinion of the Court by Groban, J.
to make clear that it is relying on facts alleged in support of a
charged offense to also support a One Strike sentence.
We rejected a similar argument in Mancebo, supra,
27 Cal.4th at page 747, concluding that Thomas did not support
the Attorney General’s contention that it was sufficient for the
accusatory pleading to place the appellant on general notice that
the facts underlying the One Strike circumstance would be at
issue at trial. In Mancebo, the defendant was charged with
committing One-Strike-qualifying crimes against more than one
victim, but the prosecution did not plead a One Strike multiple
victim allegation. (Mancebo, at p. 743.) We acknowledged that
the defendant’s conviction of the charged crimes would have
made it “difficult to meaningfully contest” the truth of a multiple
victim circumstance had the prosecution alleged one. (Id. at
p. 752.) Nevertheless, we held that it would be inconsistent with
the One Strike law’s express pleading requirement and with due
process to base a One Strike sentence on that circumstance
because the prosecution had not pled it. (Mancebo, at p. 752.
An information, we held, must allege “which qualifying
circumstance or circumstances are being invoked for One Strike
sentencing.” (Ibid.) This requirement, we explained, is dictated
not only by the language of the One Strike law’s express
pleading requirement but also by due process, because the
prosecution’s failure to inform the defendant that it is invoking
those circumstances in support of a particular One Strike
sentence “violates [the defendant’s] right to adequate notice of
the factual and statutory bases of sentence enhancement
allegations.” (Mancebo, at p. 746; see id. at p. 747 [“[A]
defendant has a cognizable due process right to fair notice of the
specific sentence enhancement allegations that will be invoked
to increase punishment”].) In sum, to satisfy due process, an
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Opinion of the Court by Groban, J.
accusatory pleading must inform the defendant that the
prosecution is relying on specific facts to support imposition of a
particular One Strike sentence. (Mancebo, at pp. 746–747.) Our
holding in Thomas is not to the contrary. (Mancebo, at pp. 747–
748.)7
To be sure, as we have emphasized, due process does not
require “rigid code pleading or the incantation of magic words.”
(Anderson II, supra, 9 Cal.5th at p. 957.) An accusatory
pleading need not specify the number of the pertinent
sentencing statute, so long as it otherwise clearly notifies the
accused of the factual basis on which it is seeking a longer
sentence and the information necessary to calculate sentencing
exposure. (§ 952; see People v. Tirado (2022) 12 Cal.5th 688, 698
[“[T]he ‘accusatory pleading need not specify by number the
statute under which the accused is being charged.’ ”].) In the
One Strike law context, we have observed that “[a]dequate
notice can be conveyed by a reference to the description of the
qualifying circumstance” in the One Strike allegation
accompanied by either a general “reference to section 667.61” or
a more specific reference to the relevant subdivision of section
667.61. (Mancebo, supra, 27 Cal.4th at p. 754.) If a One Strike
allegation describes the specific factual circumstance based on
which the prosecution seeks One Strike sentencing and cites to
section 667.61, the allegation does not necessarily need to
specify the sentence (i.e., “15 years to life,” “25 years to life,” or
“life without the possibility of parole”) or cite to the specific
7
We disapprove People v. Neal (1984) 159 Cal.App.3d 69,
which we cited with approval in Thomas, supra, 43 Cal.3d at
pages 830 to 831, to the extent it is inconsistent with the
understanding of fair notice that is reflected in our present
analysis.
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Opinion of the Court by Groban, J.
subdivision of section 667.61 that provides the applicable
enhanced penalty. (Mancebo, at pp. 753–754; see Anderson II,
at p. 957 [“We do not mean to suggest that an information that
fails to plead the specific numerical subdivision of an
enhancement is necessarily inadequate”].) Similarly, a One
Strike allegation need not specify the factual basis of the
sentence the prosecution is seeking if the allegation’s text
otherwise makes clear that the prosecution intends to rely on
the facts alleged in connection with the underlying count to seek
imposition of a specific One Strike sentence on that count. To
satisfy due process, it is sufficient for an accusatory pleading to
provide the defendant fair notice of the particular One Strike
sentence the prosecution is seeking and of which facts it intends
to prove to support that sentence. (Mancebo, at pp. 753–754.
B. The One Strike Allegation on Count 2 Did Not
Provide Vaquera Fair Notice That the
Prosecution Was Seeking a 25-year-to-life
Sentence Under Section 667.61(j)(2) Based on
the Victim’s Age
Applying these principles, we must determine whether the
One Strike allegation as to count 2 provided Vaquera fair notice
that the prosecution was seeking a sentence of 25 years to life
under subdivision (j)(2) based on the victim being under the age
of 14, rather than 15 years to life under subdivision (b) based on
the multiple victim circumstance alone. As noted above, the
allegation stated: “As to count(s) 2, it is further alleged pursuant
to Penal Code sections 667.61(b)/(e)(4), that in the commission
of the above offense, [Vaquera] committed an offense specified
in Penal Code section 667.61(c) against more than one victim.”
The first subdivision of the One Strike law cited in the
allegation, subdivision (b), states: “Except as provided in
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In re VAQUERA
Opinion of the Court by Groban, J.
subdivision (a), (j), (l), or (m), a person who is convicted of an
offense specified in subdivision (c)” — which includes section
288, subdivision (a), under which Vaquera was charged —
“under one of the circumstances specified in subdivision (e) shall
be punished by imprisonment in the state prison for 15 years to
life.” The second subdivision cited in the allegation, subdivision
(e)(4), sets out the multiple victim circumstance.
At least on initial read, the allegation’s citations to
subdivisions (b) and (e)(4), combined with its invocation of the
qualifying circumstance that Vaquera committed the covered
offense “against more than one victim,” suggest the prosecution
was seeking a sentence of 15 years to life based on the multiple
victim circumstance. Subdivision (b) provides for a sentence of
15 years to life, and subdivision (e)(4) applies when a defendant
is convicted in a single proceeding of committing a One Strike
offense “against more than one victim.” Based on the underlying
charges in this case, the prosecution had the choice of: (1) not
including a One Strike allegation in the information and seeking
a determinate sentence of three, six, or eight years (§ 288, subd.
(a)); (2) seeking 15 years to life based on the multiple victim
circumstance alone (§ 667.61, subds. (b) & (e)(4)); or (3) seeking
25 years to life based on the additional circumstance that the
victim of count 2 was under the age of 14 (id., subd. (j)(2)). The
information appears to reflect that the prosecution chose the
middle ground, alleging a One Strike law circumstance, citing
to subdivisions (b) and (e), and including a corresponding
multiple-victim factual allegation, while omitting any citation to
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In re VAQUERA
Opinion of the Court by Groban, J.
subdivision (j)(2) and any corresponding allegation that the
victim was under the age of 14.8
Looking beyond the language of the One Strike allegation
as to count 2, the way the prosecution framed the allegations as
a whole further suggests it was not seeking sentencing under
subdivision (j)(2). The Chelsea’s Law amendments, by which the
Legislature added subdivision (j) to the One Strike law, had
taken effect two years before the prosecution filed the
information. Under the prior version of the statute, subdivision
(e)(4) pertained to the personal use of a firearm; the multiple
victim circumstance was codified in former subdivision (e)(5).
The information cites former subdivision (e)(5) in connection
with the One Strike law allegation as to count 1, which was
based on conduct predating the Chelsea’s Law amendments.
The allegation as to count 2, by contrast, cites subdivision (e)(4
for the multiple victim circumstance. The prosecution’s citation
to subdivision (e)(4) rather than subdivision (e)(5) in connection
8
Notably, the One Strike allegation as to count 2 is framed
how one might expect it to be framed if the prosecution wanted
to make clear that it had elected to seek sentencing under
subdivision (b) rather than under subdivision (j)(2). Indeed, it
is difficult to imagine how else a prosecutor would make that
election clear in the information. Subdivision (j)(2) applies in
the same circumstances in which subdivision (b) applies —
conviction “of an offense specified in subdivision (c) under one of
the circumstances specified in subdivision (e)” (§ 667.61,
subd. (b)) — but only when an additional circumstance is pled
and proved: that the offense was committed “upon a victim who
is a child under 14 years of age” (id., subd. (j)(2)). Had the
prosecution intended to seek sentencing under subdivision (j)(2
it could have simply cited that subdivision; there would have
been no reason for it to cite subdivision (b).
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Opinion of the Court by Groban, J.
with count 2, but not count 1, therefore suggests it was aware of
the renumbering of the One Strike law’s multiple victim
circumstance pursuant to the Chelsea’s Law amendments when
drafting the information. (See Stats. 2010, ch. 219, § 16.
Reading the One Strike allegation as to count 2 in this context,
defense counsel would have reasonably assumed the prosecutor
was aware of subdivision (j)(2) and had elected to seek
sentencing under subdivision (b) instead. (See Anderson II,
supra, 9 Cal.5th at p. 956.) Indeed, it appears from the first
sentencing brief that the prosecutor understood throughout the
trial that the punishment for count 2 would be 15 years to life
under subdivision (b).
We considered a somewhat similar issue in Anderson II,
supra, 9 Cal.5th at page 957, where we concluded that the
pleading of a vicarious firearm allegation carrying a 25-year-to-
life sentence as to one count did not provide fair notice that the
prosecution would seek additional vicarious firearm
enhancements as to other counts. We observed that the
prosecution’s choice “to allege other, lesser enhancements” on
the counts at issue gave the defendant “reason to believe the
prosecution was exercising its discretion not to seek the . . . 25-
year-to-life enhancement” on those counts. (Ibid.) In this case,
the framing of the One Strike allegation as to count 2,
particularly when considered in juxtaposition to the framing of
the One Strike allegation as to count 1, gave Vaquera reason to
believe the prosecution was exercising its discretion not to seek
sentencing under subdivision (j)(2) by pleading subdivision (b
and relying exclusively on the multiple victim circumstance
rather than also pleading that the victim was under the age of
14.
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Opinion of the Court by Groban, J.
In circumstances parallel to those of this case, the Court
of Appeal in Jimenez, supra, 35 Cal.App.5th 373 held that the
imposition of 25-year-to-life sentences under subdivision (j)(2
violated the defendant’s due process right to fair notice.
(Jimenez, at p. 397.) In Jimenez, as here, a jury convicted the
defendant of committing One-Strike-eligible offenses against
multiple victims under the age of 14 and also found true a One
Strike multiple victim allegation: that “Jimenez did ‘commit the
offense on more than one victim within the meaning of Penal
Code Section 667.61 (b)/(e).’ ” (Jimenez, at p. 394.) The Court of
Appeal concluded this allegation did not provide fair notice that
Jimenez faced 25-year-to-life sentences under subdivision (j)(2).
(Jimenez, at p. 397.) It observed, “the information only informed
Jimenez he could be sentenced to terms of 15 years to life under
Penal Code section 667.61, subdivisions (b) and (e) for
committing the alleged offenses against multiple victims. The
information did not put him on notice that he could be sentenced
to terms of 25 years to life under section 667.61(j)(2) for
committing those offenses upon multiple victims, at least one of
whom was under 14 years of age.” (Jimenez, at p. 397.) In
Jimenez, as here, the prosecution pled and the jury found the
facts necessary to support imposition of a 25-year-to-life
sentence under subdivision (j)(2). (Jimenez, at p. 394; see
Apprendi, supra, 530 U.S. at p. 490.) The Court of Appeal’s
conclusion that the prosecution did not provide fair notice rested
on the information’s failure to inform Jimenez that the
prosecution intended to rely on those facts to seek sentencing
under subdivision (j)(2).
The Attorney General points out that subdivision (b)’s
initial clause states that a sentence of 15 years to life shall be
imposed “[e]xcept as provided in subdivision . . . (j)” and that
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Opinion of the Court by Groban, J.
subdivision (j)(2), in turn, states that any “person who is
convicted of an offense specified in subdivision (c)” — among
which is the offense alleged in count 2 — “under one of the
circumstances specified in subdivision (e), upon a victim who is
a child under 14 years of age, shall be punished by imprisonment
in the state prison for 25 years to life.” (Ibid.) He contends that
because subdivision (b) cross-references subdivision (j), the
information provided Vaquera fair notice that the prosecution
was seeking a sentence of 25 years to life on count 2. We
disagree. At most, the statutory cross-reference to subdivision
(j) renders the allegation ambiguous as to whether the
prosecutor might seek sentencing under that provision. Read as
a whole, the pleading failed to inform Vaquera of the
prosecutor’s election to seek the more stringent sentence and did
not provide fair notice of his sentencing exposure.9
We recognize, as the Court of Appeal emphasized and as
Vaquera concedes, that the provisions of the One Strike law
9
The Attorney General briefly argues that to hold that
Vaquera’s right to fair notice was violated would be inconsistent
with People v. Valladoli (1996) 13 Cal.4th 590. In Valladoli, we
concluded that the trial court did not violate due process when
it authorized the prosecution to amend an accusatory pleading
after trial to add prior felony conviction allegations. (Id. at
p. 607; see § 969a.) Valladoli is distinguishable. The case
concerned whether the trial court violated due process by
permitting the amendment of an accusatory pleading, not
whether it did so by imposing a sentence based on an unpled
provision. (Valladoli, at p. 607.) Moreover, the defendant in
Valladoli knew from the outset of the case that the prosecution
intended to seek an enhanced sentence based on his prior felony
convictions and disavowed any claim of lack of notice. (Id. at
p. 608.
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Opinion of the Court by Groban, J.
generally are mandatory when properly pled and proved.
(Vaquera, supra, 39 Cal.App.5th at p. 245.) If the prosecution
had alleged under subdivision (j)(2) that Vaquera was subject to
a 25-year-to-life sentence on count 2 based on having been
“convicted of an offense specified in subdivision (c) under one of
the circumstances specified in subdivision (e), upon a victim who
is a child under 14 years of age” and the jury found that
allegation true, the trial court generally would have been
required to sentence Vaquera to 25 years to life on count 2.
(§ 667.61, subd. (j)(2).
However, the question before us is whether the
information provided fair notice to Vaquera of the One Strike
sentence the prosecution was seeking and the factual basis on
which it sought that sentence. To provide fair notice, an
“accusatory pleading must adequately inform the defendant as
to how the prosecution will seek to exercise its discretion.”
(Anderson II, supra, 9 Cal.5th at p. 957.) As we have explained,
a prosecutor has the discretion to charge any provision of the
One Strike law supported by the facts or, indeed, to elect not to
invoke the One Strike law at all; nothing requires the prosecutor
to charge the One Strike provision that carries the longest
sentence. (See Anderson II, at p. 957; see People v. Villegas
(2023) 97 Cal.App.5th 253, 367–368.)10 The fact that the trial
court must impose a One Strike sentence when a One Strike
allegation is properly pled and proved does not relieve the
10
We disapprove People v. Zaldana (2019) 43 Cal.App.5th
527 to the extent it is inconsistent with our conclusion that the
prosecution has discretion to allege a subdivision (b
circumstance rather than a subdivision (j)(2) circumstance
where the defendant is charged with committing One-Strike-
eligible offenses against multiple victims under the age of 14.
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Opinion of the Court by Groban, J.
prosecution of its obligation to provide fair notice to the
defendant of the sentence it is seeking. The Court of Appeal
therefore erred in concluding that because the jury found the
facts that would support sentencing under subdivision (j)(2
when it convicted Vaquera on counts 1 and 2, the court was
“required to impose a 25-year-to-life sentence . . . .” (Vaquera,
supra, 39 Cal.App.5th at p. 245.) Whether the court was so
required generally would turn on whether the prosecution
properly invoked subdivision (j)(2) by pleading those facts in
connection with the One Strike allegation. The prosecution’s
failure to do so violated Vaquera’s due process right to fair
notice.
The determination whether an accusatory pleading
provides fair notice of a potential One Strike sentence requires
a careful analysis of the language of the One Strike allegation.
Here, the One Strike allegation specified that it was making
“further” allegations “[as] to count 2.” It may be possible to read
this language as not only specifying the count to which the
allegation pertained but as also incorporating by reference the
factual allegations in count 2, including, as relevant here, that
the victim was under the age of 14. However, to use a fact
alleged in connection with the underlying offense to support a
One Strike allegation, the prosecution must provide fair notice
that it intends to use that fact for purposes of One Strike
sentencing. (Cf. Anderson, supra, 9 Cal.5th at pp. 956–957
[“Fair notice requires that every sentence enhancement be
pleaded in connection with every count as to which it is
imposed”]; Mancebo, supra, 27 Cal.4th at p. 754 [upholding
decision striking unpled multiple victim circumstances although
charging document alleged One-Strike-qualifying offenses
against multiple victims].) The prosecution did not provide fair
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Opinion of the Court by Groban, J.
notice of its intent to rely on the allegation concerning the
victim’s age to seek a 25-year-to-life sentence under
subdivision (j)(2). As noted above, the information is most
reasonably interpreted as conveying a prosecutorial election not
to rely on the age of the victim — and thus not to invoke
subdivision (j)(2) in connection with count 2. The One Strike
allegation’s ambiguous reference to count 2 did not provide fair
notice of the prosecution’s election to rely on the allegation of the
victim’s age to seek a longer One Strike sentence.
There are various ways the prosecution could have
provided fair notice of its intent to seek sentencing under
subdivision (j)(2). The prosecution could have briefly alleged in
the One Strike law allegation the factual circumstances on
which it was relying (Vaquera having been convicted in the
present case of committing violations of section 288, subdivision
(a) against multiple victims and the victim being under the age
of 14) and cited to the One Strike law generally (§ 667.61). (See
Mancebo, supra, 27 Cal.4th at p. 754.)11 Alternatively, the
prosecution could have cited to subdivision (j)(2) and referenced
the charge in count 2 (§ 288, subd. (a)), an essential element of
which is that the victim was under 14 years old) and the
multiple victim circumstance (§ 667.61, subd. (e)(4)).12 Had the
11
Indeed, the information did specify that that the victims
were under 14 years of age in a separate allegation regarding
defendant’s ineligibility for probation, making the prosecutor’s
failure to include the same factual circumstance in the One
Strike law allegation appear intentional.
12
The One Strike law applies to nine enumerated sex
offenses. (§ 667.61, subd. (c).) Only three of those offenses
require proof that the victim was under 14 years of age at the
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Opinion of the Court by Groban, J.
prosecution framed the allegation in either of these ways, due
process would not have required it to expressly specify that it
was seeking 25 years to life on count 2, although doing so would
have rendered the pleading even clearer as to Vaquera’s
sentencing exposure. Alternatively, had the prosecution
specified in the One Strike allegation that it was seeking 25
years to life on count 2 and alleged the factual circumstances on
which it was relying to support that sentence, that would have
provided fair notice even without a citation to subdivision (j)(2).
The One Strike allegation as to count 2, however, did not
specify that the prosecution was seeking 25 years to life on that
count, cite to subdivision (j)(2), or otherwise make clear that the
prosecution was seeking a longer sentence based on the victim’s
age. Because the allegation did not inform Vaquera of the
prosecution’s intent to invoke the One Strike law circumstance
on which the trial court ultimately sentenced him, the allegation
failed to provide him fair notice.
time of the offense. (See id., subd. (c)(4), (8), (9).) For any of the
other six offenses, due process requires the One Strike
allegation to specify that the victim was under the age of 14
when the prosecution is seeking a longer sentence under
subdivision (j)(2) on that basis. And even when seeking a
sentence under subdivision (j)(2) for an offense of which the
victim’s age is an element, the best practice is to specify the
offense in the One Strike allegation — e.g., that “the defendant
was convicted of committing a lewd act on a child under the age
of 14 (Pen. Code, § 288, subd. (a))” — in addition to specifying
the subdivision (e) circumstance — e.g., that the defendant “has
been convicted in the present case of committing the offense
against more than one victim” (id., subd. (e)(4)).
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Opinion of the Court by Groban, J.
C. Vaquera Is Entitled To Resentencing on
Count 2
Having determined that the imposition of a 25-year-to-life
sentence under subdivision (j)(2) on count 2 violated Vaquera’s
due process right to fair notice, we now consider whether he is
entitled to resentencing. Vaquera argues, citing Mancebo, that
he is entitled to be resentenced to 15 years to life on count 2
because the prosecution waived its right to seek a 25-year-to-life
sentence under subdivision (j)(2) by pleading subdivision (b) and
not seeking to amend the information. (See Mancebo, supra,
27 Cal.4th at p. 749 [“doctrines of waiver and estoppel, rather
than harmless error, apply” where the prosecution’s failure to
plead a One Strike allegation reflects a “discretionary charging
decision”].) Alternatively, citing Anderson II, supra, 9 Cal.5th
at pages 963 to 964, Vaquera contends that he is entitled to be
resentenced to 15 years to life on count 2 because the Attorney
General has not demonstrated that the prosecution’s failure to
provide fair notice was harmless.
We need not decide whether Mancebo’s analysis applies in
the present context because even assuming the due process
violation is subject to a prejudice analysis, Vaquera is entitled
to resentencing. In Anderson II, supra, 9 Cal.5th at page 964,
we held that the defendant was entitled to resentencing where
the prosecution’s intent to seek the sentencing enhancements at
issue only became clear on the day of the sentencing hearing —
“too late to cure the defective pleading.” We reasoned that the
purpose of a statutory pleading requirement is “to give sufficient
notice to permit the defense to make informed decisions about
the case, including whether to plead guilty, how to allocate
investigatory resources, and what strategy to deploy at trial.”
(Ibid.; see also Mancebo, supra, 27 Cal. 4th at p. 752 [observing
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Opinion of the Court by Groban, J.
that timely notice of a sentencing allegation may impact a
defendant’s decision “whether to plea bargain or go to trial”].
Because Anderson did not receive notice of the potential
sentence he faced in time for him to take his sentencing
exposure into account in making those decisions, we concluded
the pleading error was not harmless and he was entitled to
resentencing. (Anderson II, at p. 964.) Nothing in the record
here suggests Vaquera learned of his sentencing exposure on
count 2 in time for him to take it into account in fashioning his
defense strategy. Accordingly, the Attorney General has not
met his burden to show the fair notice violation was harmless.
The Attorney General argues that Vaquera had actual
notice that he faced a 25-year-to-life sentence on count 2 because
the One Strike law required the court to impose a 25-year-to-life
sentence. This argument rests on the erroneous premise that a
15-year-to-life sentence under subdivision (b) would be
unauthorized in the context of this case. As we have observed,
subdivision (j)(2) requires the court to impose a 25-year-to-life
sentence only when it has been properly pled and proved. As
the Attorney General would have us read the statute, the
prosecution’s only options would be to omit a One Strike
allegation entirely (i.e., not seek application of the One Strike
scheme at all) or to seek the maximum sentence permitted
under the One Strike law based on the facts proved in
conjunction with the underlying sex offense (here, 25 years to
life). As we have explained, this reading is incorrect: The
prosecution may opt to allege a One Strike law circumstance
that supports imposition of a 15-year-to-life sentence even when
it alleges facts that would support imposition of a longer
sentence elsewhere in the accusatory pleading.
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Opinion of the Court by Groban, J.
The Attorney General further argues that Vaquera is not
entitled to resentencing because he should have been aware that
the prosecution could seek sentencing under subdivision (j)(2).
It seems the Attorney General would have us impute to Vaquera
awareness that the prosecution intended to seek sentencing
under subdivision (j)(2) although the Attorney General suggests
the prosecution itself “inadvertently failed to consider”
subdivision (j)(2), and although it appeared to CDCR, reviewing
the trial record, that the prosecution was seeking sentencing
under subdivision (b). Because the information could be
reasonably read as indicating that the prosecution had elected
not to seek 25 years to life under subdivision (j)(2), the burden
is on the Attorney General to demonstrate that Vaquera was
aware of the sentence the prosecution was seeking at a time
when he could have taken his sentencing exposure into
consideration in making key decisions about how to conduct his
defense, “including whether to plead guilty, how to allocate
investigatory resources, and what strategy to deploy at trial.”
(Anderson II, supra, 9 Cal. 5th at p. 964; see Mancebo, supra,
27 Cal.4th at p. 752.) The Attorney General has not met this
burden. The record shows that the same prosecutor filed the
information, conducted the trial, and submitted both sentencing
briefs. In the almost two years between when the prosecution
filed the information and when it filed its second sentencing
brief, it did not seek to amend the information or otherwise
clarify it was seeking sentencing under subdivision (j)(2) rather
than subdivision (b). Then, in its initial sentencing brief, the
prosecution affirmatively asked the court to impose a sentence
of 15 years to life on count 2 pursuant to subdivision (b). It was
not until the prosecution filed its second sentencing brief, three
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In re VAQUERA
Opinion of the Court by Groban, J.
months after the jury returned its verdict, that it first made
clear its intent to seek 25 years to life under subdivision (j)(2).
This would be a different case if the prosecution had
provided Vaquera timely actual notice that it was seeking a 25-
year-to-life sentence on count 2 and the factual basis on which
it was seeking that sentence, despite its failure to provide such
notice in the information. (See People v. Houston (2012
54 Cal.4th 1186, 1228 [finding the defendant forfeited on appeal
due process claim based on indictment’s failure to provide fair
notice of sentencing exposure where the defendant “received
adequate notice of the sentence he faced” before the case was
submitted to the jury and had sufficient opportunity to request
additional time to prepare a defense but “did not raise an
objection in the trial court”].) Here, however, the Attorney
General does not attempt to demonstrate that Vaquera received
such notice by any means other than the information. In the
return to the order to show cause, the Attorney General did not
allege that Vaquera had actual notice the prosecution intended
to seek a 25-year-to-life sentence under subdivision (j)(2) on
count 2 at a time when Vaquera could have taken the
prosecution’s election into account in formulating his defense
strategy. Nor did the return state facts or provide any
“ ‘documentary evidence, affidavits, or other materials’ ” that
would support a finding that Vaquera had timely actual notice.
(People v. Duvall (1995) 9 Cal.4th 464, 476.) Vaquera therefore
is entitled to resentencing on count 2.
III. CONCLUSION
For the reasons given above, we reverse the judgment of
the Court of Appeal and remand with instructions to grant
Vaquera habeas corpus relief and to direct the trial court to
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In re VAQUERA
Opinion of the Court by Groban, J.
strike the 25-year-to-life sentence imposed under subdivision
(j)(2) on count 2 and resentence Vaquera to 15 years to life on
that count under subdivision (b).
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
EVANS, J.
28

See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Vaquera

Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 39 Cal.App.5th 233
Review Granted (unpublished)
Rehearing Granted

Opinion No. S258376
Date Filed: February 5, 2024

Court: Superior
County: Orange
Judge: David A. Hoffer

Counsel:
Sharon Petrosino, Public Defender, Sara Ross, Assistant Public
Defender, Miles David Jessup, Matthew Darling and Abby Taylor,
Deputy Public Defenders, for Petitioner Oscar Manuel Vaquera.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting, Paige B. Hazard and James M. Toohey,
Deputy Attorneys General, for Respondent the People.

Counsel who argued in Supreme Court (not intended for
publication with opinion):
Abby Taylor
Deputy Public Defender
801 Civic Center Drive West, Suite 400
Santa Ana, CA 92701
(657) 251-8607
Paige B. Hazard
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 540-0201