People v. Cervantes (9 Cal. App. 5th 569, 2017)

Opinion

STREETER, J.

—Alexander Cervantes was 14 years old when he attacked a 13-year-old girl and her 20-month-old brother, who were the younger siblings of one of his friends. After breaking into their home in the middle of the night, he stabbed them repeatedly as they slept, raped and sodomized the girl, forced her to orally copulate him, and ultimately passed out during the attack. He had been drinking heavily that evening and his defense rested on voluntary intoxication to negate specific intent. He was convicted of 15 charges, including various sex offenses, first degree burglary, and two counts each of attempted murder, torture, and aggravated mayhem. He received a prison sentence of 50 years to life under the one strike law (Pen. Code, § 667.61), a consecutive 11-year determinate term for one attempted murder (§§ 187, 664), plus a consecutive life term for the other attempted murder.

We divide our discussion into three parts. Only an overview of the first part shall be published, but the remaining two parts are certified for publication in their entirety.

First, Cervantes argues that the representation he received was so far below the minimum threshold of constitutionally effective assistance of counsel as to amount to no defense at all. Pointing to dozens of shortcomings— beginning with an incomplete investigation of his mental state, which he says guaranteed his counsel either had no basis for strategic choices she made or simply failed to recognize choices she should have made—he asks that we reverse outright, and remand for a new trial. While we reject that argument, we agree there were a number of serious deficiencies in counsel’s performance, enough to leave us without confidence in the outcome of the trial on most of the specific intent crimes. We therefore reverse on eight specific intent counts, while affirming as to the remaining seven counts, including the convictions for burglary and all of the general intent crimes (four of the six sex offenses, and two counts of assault with a deadly weapon).

Second, our conclusion that we must reverse and remand for retrial on eight of 15 counts presents some novel issues under recently passed Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Cervantes argues Proposition 57 requires that the case be remanded for a “fitness hearing” to the juvenile court, which he contends has “exclusive jurisdiction” over any trial of the offenses charged in this case until and unless it determines that the case should be transferred to adult criminal court, and further, that a remand for retrial on any of the counts of which he was convicted requires vacatur of all the convictions and retrial of all charges. He argues that Proposition 57 is retroactive, but that this result is mandated even when applying Proposition 57 prospectively to any proceedings on remand after a partial reversal. We do not agree that Proposition 57 is retroactive. Nor do we agree that a partial reversal requires that all convictions must be vacated. But we do agree that Proposition 57 requires a remand to the juvenile court for a “fitness hearing,” and that the outcome of that hearing will determine which department of the Superior Court—adult criminal court, or juvenile court—will handle any retrial on the reversed counts and sentencing.

Third, Cervantes argues that the sentence imposed on him is the functional equivalent of life without possibility of parole and therefore violates the Eighth Amendment under Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham) and People v. Caballero (2012) 55 Cal.4th 262, 268 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero). Since the sentencing choices made on the convictions we affirm, even without conviction on the counts we reverse, could produce another indeterminate life sentence with a lengthy minimum term, this Eighth Amendment issue will be relevant to the proceedings on remand whether Cervantes’s case is handled in adult criminal court or stays in juvenile court. Thus, we address it and conclude that a sentence requiring Cervantes to serve at least 66 years in prison before he would first become eligible for parole is constitutionally infirm. Because that term exceeds his life expectancy, it is the functional equivalent of life without parole and violates the Eighth Amendment under Graham at page 74 and Caballero at page 268. Where, exactly, the constitutional line lies below the 66 years to life imposed in this case has yet to be addressed by our Supreme Court, although we note that some guidance on the issue will likely be forthcoming in a case now pending before it. In the meantime, the Proposition 57 “fitness hearing” we order today will rectify any constitutional concerns about the length of whatever term of confinement is imposed on Cervantes for the convictions we affirm here, as well as for any other offenses that may be tried on remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts Disclosed at Trial

1. Prosecution’s Case

On the evening of December 11, 2010, Cervantes attended a party, where witnesses saw him drinking from 6:00 p.m. to 9:00 p.m. One of the partygoers described him as “really drunk” at 10:20 p.m.

At approximately 1:30 or 2:00 a.m. on December 12, 2010, Cervantes entered the Vacaville home of his sometime friend, Gabriel T. (Gabriel). He carried a steak knife he had brought from home and had a condom with him. Gabriel was not at home because he was in juvenile hall. The only occupants were Gabriel’s younger sister, 13-year-old A.P, and their 20-month-old brother, I.A. A.P. was babysitting I.A. while their mother and another sister were out of the house.

As the evening progressed, A.P. and I.A. fell asleep on their mother’s bed. A.P. awoke to the sensation of a sharp pain in her back like someone was punching her, and she saw blood underneath her on the bed. Looking in the mirror, she saw someone else in the room. Turning, she recognized Cervantes as a friend of her older brother’s. A.P. testified he was wearing black gloves and a black jacket. She asked Cervantes why he was there. “He said that it was revenge for my brother, against Richard—something with an R,” or “revenge for [her] brother for snitching on . . . Richard . . . .” A.P. did not know what he was talking about. As A.P. tried to unlock her cell phone to call 911, she fell off the bed. While she was on the floor, Cervantes stabbed her repeatedly in her head, back, and shoulders. A.P. suffered defensive wounds on her wrists and elbow when she tried to shield her head. She begged Cervantes to stop and eventually he did. After Cervantes stopped stabbing her, A.P. heard her baby brother “squeal,” but she could not move to help him. Then the screaming stopped.

Cervantes came back over to A.P. and “started getting into [her] pants.” He put his hand down the back of her pants and “was feeling on [her] butt.” Cervantes told A.P. to get on the bed and she complied out of fear. Cervantes got on top of her and put his penis in her vagina. After a couple of minutes, he told A.P. to moan and call him “daddy.” When A.P. did not comply, Cervantes threatened to kill her brother, by which A.P. thought he meant Gabriel. A.P. complied with Cervantes’s demands. Cervantes “finally stopped” and told her to “turn around.” A.P. rolled onto her stomach, and Cervantes sodomized her. Cervantes “finally stopped,” then told A.P. she “was going to suck his dick.” Cervantes “kind of put his penis up into [her] mouth” and “pulled [her] head down.” When A.P. saw Cervantes starting to doze off, she tried to get away, but he grabbed her hair and “yanked [her] back down.” Eventually, Cervantes fell asleep.

A.P. grabbed her phone and her little brother and quickly got out of the room. Entering the kitchen, she noticed the door to the garage was standing open, as was the door leading from the garage to the outside of the house. Both doors had been closed earlier and the external door was normally kept locked. Once outside, A.P. called 911 and went across the street to a neighbor’s house.

Shortly after 4:00 a.m. a SWAT team responded to A.P.’s home, eventually entered, and arrested Cervantes in the master bedroom. He was naked and smeared with blood. A large bloodstain and what appeared to be urine were found on the sheets.

When the crime scene was processed three empty beer cans were found: one was on the couch, one by the sink in the kitchen, and the third on the driveway in front of the garage. Cervantes’s DNA was found on two of the beer cans. The parties stipulated that both victims’ blood was found on a knife retrieved from the bedroom where the children were attacked, and the investigation showed the knife matched another steak knife found at Cervantes’s mother’s house. The parties also stipulated that (1) DNA testing could not exclude Cervantes as the source of semen found on anal swabs taken from A.P, and (2) A.P.’s dried blood was found on Cervantes at the time of his arrest.

After the attack, the children were taken to the hospital. A.P. had been stabbed a total of 42 times, and I.A. had been stabbed 13 times. A.P. had a collapsed lung and a lacerated liver and spleen. I.A. had four fractured ribs and internal injuries. A.P. was hospitalized for three days, and both children were scarred by the knife wounds they suffered that night.

2. The Charges, the Defense Case, and the Verdicts

Cervantes was charged as an adult by information filed on March 29, 2011. (Welf. & Inst. Code, former §§ 602, subd. (b)(2), 707, subd. (d)(2)(A).) An amended information filed on September 17, 2012, charged Cervantes with two counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187) (counts 1, 2), first degree burglary (§459) (count 3), two counts of torture (§ 206) (counts 4, 5), two counts of aggravated mayhem (§ 205) (counts 6, 7), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) (counts 8, 9), assault with intent to commit rape, sodomy, or oral copulahon on a person under 18 years (§ 220, subd. (a)(2)) (count 10), forcible rape of a child under 14 years (§§ 261, subd. (a)(2), 264, subd. (c)(1)) (count 11), forcible sodomy of a child under 14 years (§ 286, subd. (c)(2)(B)) (count 12), two counts of forcible oral copulation of a child under 14 years (§ 288a, subd. (c)(2)(B)) (counts 13, 14), and forcible lewd act on a child (§ 288, subd. (b)(1)) (count 15). The information further alleged as to counts 1 through 7 and 10 through 15 that Cervantes personally used a deadly and dangerous weapon, a knife (former § 12022, subd. (b)(1)); as to counts 1 through 3 and 6 through 15 that Cervantes personally inflicted great bodily injury (former § 12022.7, subd. (a)); and as to counts 10 through 15 that Cervantes inflicted great bodily injury (§ 12022.8). The information included allegations as to counts 11 through 15 under sechon 667.61, known as the “one strike” law, which calls for life sentences, including mandatory minimums, for individuals convicted of certain sex offenses in particularly blameworthy circumstances. The one strike allegations against Cervantes included that the sex crimes were committed during a first degree burglary (§ 667.61, subds. (d)(4), (e)(2)), that Cervantes also committed aggravated mayhem against and tortured A.P. (§ 667.61, subd. (d)(3)), personally inflicted great bodily injury on her (§ 667.61, subd. (d)(6)), personally used a dangerous or deadly weapon (§ 667.61, subd. (e)(3)), and committed the crimes against a child under age 14 (§ 667.61, subds. (d)(7), (j)(l) & (2)).

Trial was held in mid-September 2012. Building on the testimony that Cervantes had been drinking during the evening before the attacks, defense counsel’s strategy was to defend against all of the crimes requiring specific intent based on voluntary intoxication. The parties stipulated that Cervantes’s blood-alcohol level at 8:57 a.m. on December 12, 2010, was 0.12 percent. A forensic toxicologist, Jeffery Zehnder, testified for the defense that Cervantes’s blood-alcohol level could have been as high as 0.25 percent at the time of the crimes. Zehnder testified about increasing levels of impairment that occur with increasing levels of blood-alcohol. At 0.12 percent, “ability to do certain things, like speak” would be impaired, and at 0.15 percent there would be not only “slurred speech,” but also “impaired information processing in the brain.” Zehnder also testified that alcohol reduces inhibitions and can cause an individual to behave and speak recklessly and inappropriately, and a 0.20 percent blood-alcohol level could cause severe impairment, memory loss, and black outs.

Defense counsel argued to the jury that Cervantes was so intoxicated that he never formed the specific intent to kill and never premeditated or deliberated, and thus could not be convicted of attempted murder. She also argued, due to his inebriated state, Cervantes had not formed the intent required for burglary, torture or the other specific intent crimes.

On September 21, 2012, the jury found Cervantes guilty of all the substantive offenses, many of the enhancements, and found true some but not all of the one strike allegations. With respect to all the sex crimes, it found he personally used a deadly weapon and committed the five alleged as one strike offenses against a child under 14 in the course of a first degree burglary (§ 667.61, subds. (d)(4), (e)(2) & (3), (j)(l) & (2)), but found the infliction of great bodily injury, torture and aggravated mayhem one strike allegations not true. (§ 667.61, subds. (d)(3) & (6), (e)(3).) The true findings on the one strike allegations subjected Cervantes to a sentence of 25 years to life on each of the five one strike sex offenses. (§ 667.61, subds. (a), (e)(2) & (3), (j)(l) & (2).) The jury deliberated for approximately seven hours before reaching its verdicts.

On November 16, 2012, Cervantes’s trial counsel filed a three-page motion for new trial, arguing the evidence was insufficient to prove he had the required specific intent to support the convictions on counts 1 through 4, 6, 7, 10 and 15. Counsel also filed a thick stack of letters from family, friends, mentors, and community members in support of Cervantes, to be used at sentencing.

B. Facts and Theories Developed by Pro Bono Counsel After Trial

After Cervantes was convicted, Peter Obstler, a partner in the San Francisco office of Bingham McCutchen (and later of Arnold & Porter), took an interest in the case and attended the hearing on the new trial motion. With Obstler in the lead, Bingham McCutchen substituted in as Cervantes’s counsel on a pro bono basis, and Obstler and Arnold & Porter continue to represent him on appeal. A new date was set for the hearing of the motion for a new trial.

As he came up to speed on the case, Obstler learned that three different attorneys from the conflict defenders office (Conflict Defender’s Office) had represented Cervantes following his arrest. First was William Pendergast, who represented Cervantes from December 2010 to March 2011, when he was appointed as a commissioner. Then Kathryn Barton took over Cervantes’s defense unhl she resigned from the Conflict Defender’s Office around the end of 2011 or January of 2012. Beginning in February 2012, Erin Kirkpatrick, who was new to the Conflict Defender’s Office, took over the representation and continued in that role through trial. Kirkpatrick had more than 10 years of experience as a criminal defense attorney and entered the Conflict Defender’s Office’s employ at a high level of experience and responsibility.

After reviewing the transcripts and conducting his own investigation, aided by experts, Obstler came to advocate a different theory of the crime than Kirkpatrick had pursued at trial. He noted and built upon the fact that, early in the defense investigation of the case, Cervantes reported to Pendergast that, in addition to drinking, he had also smoked marijuana and taken psilocybin mushrooms on the night of the crimes, which he had purchased from a “Northsider” at the party he had attended before the attacks. Cervantes specifically told Pendergast he did not get the mushrooms from Gabriel. Cervantes told Pendergast he had taken Ecstasy (MDMA), which he purchased from Gabriel, on numerous occasions but had not used MDMA on the night of the attacks. Another recent criminal case in town involved a defendant named Richard Calkins, who also took psilocybin mushrooms and then shot and killed two of his best friends and maimed a third while they were watching television, with no preceding argument or other provocation. Calkins’s crime and the role of psilocybin mushrooms in it had been reported in the local newspapers.

Even though Cervantes and Calkins apparently did not know each other, Obstler embraced the theory that the “Richard” mentioned by A.P. in her testimony was this very same Richard Calkins. He argued at the new trial motion and again on appeal that Cervantes never made the remark about “Richard,” and A.P. probably misunderstood him or made it up from publicity about the Calkins case because her family had become suspicious that they were the targets of someone seeking revenge against Gabriel for having provided the mushrooms that resulted in such violent consequences.

Despite their lack of an actual acquaintance with one another, Obstler claims there was a connection between Cervantes and Calkins. It turned out that Gabriel had sold the psilocybin mushrooms to Calkins more than three weeks before Cervantes’s crimes, and Gabriel admitted as much to the police shortly after Calkins was arrested. That is apparently why he was in juvenile hall. Based on the reactions by Calkins and Cervantes after eating the mushrooms, Dr. Alex Stalcup, a defense addiction expert, speculated that the mushrooms in both cases may have been adulterated with MDMA or “angel dust” (PCP); the expert admitted on cross-exantination that he did not, in fact, know whether the mushrooms were tainted. According to expert testimony in the Calkins case, some of the mushrooms in his possession did test positive for MDMA. From these leads, Obstler and his team have developed the theory that Gabriel also sold psilocybin mushrooms to Cervantes at around the same time he sold them to Calkins and they, too, were tainted with MDMA.

Obstler also pointed to additional information about Cervantes’s developmental and mental health history that could have been used at trial to help explain his behavior that night. Cervantes’s umbilical cord was wrapped around his neck at birth, resulting in oxygen deprivation. He was required to use oxygen machines to maintain breathing at times in his childhood. He had learning difficulties in school and had an individualized education program (IEP). He was in a car accident as a child and suffered some head injuries, at once characterized as “minor,” but having led to “moderately severe brain damage.” He was diagnosed with attention deficit hyperactivity disorder (ADHD) in elementary school and had been on medication for it since second grade.

But the evidence of Cervantes’s developmental and mental health history was not all helpful. In one IEP, it was noted that Cervantes had an atypical obsession with sex and violence, so much so that the evaluator wondered if he had been sexually abused. When he was in the fifth or sixth grade he was removed from school and taken to the hospital after he said he was going to “kill [his] mother and burn [down the] house.”

To help interpret the mental health evidence, Obstler sought out an expert, Dr. Michael Shore, a neuropsychologist, who conducted a battery of neurological tests and examinations, which led him to conclude that Cervantes had a baseline mental status of a 10 year old. Among the tests he ordered performed was a single-photon emission computed tomography (SPECT) study, which is a nuclear imaging test that employs glucose injected with radioactive material to measure brain activity. The SPECT test itself was performed by Dr. Daniel Amen, and his report was attached as an exhibit to the motion for a new trial. Dr. Amen concluded: “The most significant finding is decreased activity in the orbitofrontal cortex . . . consistent with an ADHD like process.” He also found scalloping, “often indicative of some form of toxic exposure,” and decreased activity in the prefrontal pole, which “may indicate a history of brain injury.”

Based in part on Dr. Amen’s report, Dr. Shore concluded that Cervantes’s brain was “diffusely damaged” and found specific “compromise” of the prefrontal cortex. He opined that Cervantes was in a state of “acute organic psychosis” when he attacked the children. Cervantes was also suffering from “longstanding and quite significant” depression, “moderate brain damage,” and learning disabilities. Dr. Shore believed Cervantes’s drug use partly explained his behavior that night, and he was allowed to testify to Cervantes’s drug and alcohol history. He opined that Cervantes’s substance abuse may have contributed to his brain damage, along with lack of oxygen at birth and “multiple minor head injuries.” Dr. Shore accepted as a fact that Cervantes had taken psilocybin mushrooms on the night of his crimes. His opinion was based on brain damage, psychedelic drug ingestion, and depression; no single factor could be considered the cause of the psychotic episode.

Dr. Stalcup, a physician specializing in addiction medicine, also conducted an exantination of Cervantes, focusing on the effect of hallucinogenic drugs on someone with his specific cognitive impairments, as described by Dr. Shore. Assuming Cervantes consumed psilocybin mushrooms on the night of the crimes, Dr. Stalcup endorsed Dr. Shore’s opinion and concluded that Cervantes’s alcohol and drug use caused an organic psychosis and Cervantes attacked his victims in a dissociative state. His opinion relied on Dr. Shore’s report and on Cervantes’s report of having taken psilocybin mushrooms that night. He was not allowed to testify that Cervantes was, in fact, using psilocybin mushrooms that night. He also thought Cervantes was “possibly” under the influence of MDMA. Dr. Stalcup also opined, however, even without psilocybin mushrooms, Cervantes’s alcohol and marijuana use alone, combined with the deficits revealed in the SPECT scan, would have led to organic psychosis.

C. The Motion for a New Trial

On April 16, 2013, Obstler filed a motion for a new trial. Evidentiary hearings were conducted over the next several months, and on October 18, 2013, the court denied the motion. In addition to expert psychological testimony from Drs. Shore and Stalcup, summarized above, Obstler called his legal expert, Coffer, to testify as an expert witness on competency of criminal defense counsel. (See fn. 7, ante.) In a lengthy written report with multiple attachments, as well as in testimony on the new trial motion, Coffer catalogued the errors and omissions he saw in Kirkpatrick’s preparation for trial and trial strategy, and ultimately opined that Kirkpatrick had provided ineffective assistance of counsel. Obstler also called as witnesses two mental health experts retained by the defense before trial, as well as Kirkpatrick, Pendergast and Barton, and two of Kirkpatrick’s superiors in the Conflict Defender’s Office. The testimony wifi be summarized below, in the unpublished section of the opinion.

The trial court denied Cervantes’s motion for a new trial, finding Kirkpatrick credible and her decisions “competently made based upon the information she had at the time.” The court further found that, had the defense presented at trial the evidence presented in the new trial motion, “there is no reasonable probability that a different result would occur.” The mental health evidence had included an “[atypical] obsession with sex and violence and lack of control and behavioral problems” and, had it been presented to the jury along with “the actual horrific facts of the crime itself,” it “would have been absolutely devastating to the defense.” The court also opined that “more evidence of voluntary intoxication through marijuana and psychedelic mushrooms” would not have resulted in a more favorable verdict for Cervantes.

D. Sentencing

On October 28, 2013, the court sentenced Cervantes to 50 years to life for two of the sex crimes under the one strike law (two consecutive terms of 25 years to life), plus 11 years imposed consecutively for the attempted murder of I.A., plus an additional consecutive life term for the attempted murder of A.P. The remaining counts were either imposed concurrently or stayed under section 654. Thus, Cervantes’s aggregate sentence was 61 years to life, plus a consecutive life term. Importantly, the longest terms were attributable to the sex offenses under the one strike law, four of which were general intent crimes (rape, sodomy, and two counts of oral copulation). Under section 667.61, Cervantes was not awarded any credits for good conduct before sentencing. (See part H.C.2.C., post.) The probation officer had calculated Cervantes’s exposure at four life sentences without possibility of parole, plus an indeterminate term of 155 years to life and a determinate term of 15 years four months. The judge stayed many of the potential sentences on various counts of conviction and enhancements in an effort to bring the sentence within the limits established by Graham, supra, 560 U.S. at page 74 and Caballero, supra, 55 Cal.4th at page 268. Through its comments at sentencing and the many sentencing choices it made, we believe the court fairly clearly expressed its intention to impose a life sentence with the highest minimum term it could, while avoiding an unconstitutional sentence under Caballero.

II. DISCUSSION

A. Ineffective Assistance of Counsel

1. Cervantes’s Claims of Ineffective Assistance

Still represented by Obstler and his firm on appeal, Cervantes contends Kirkpatrick was constitutionally ineffective in representing him, pointing out numerous errors she allegedly made. He claims that, in combination, these errors amounted to a complete failure to subject the prosecution’s case to meaningful adversarial testing.

First, Cervantes argues trial counsel failed to adequately investigate certain details of the case, specifically she: (1) failed to consult with Cervantes’s two prior attorneys, who could have informed her of their investigation to date and their theories of the case; (2) failed to follow up on crime scene photographs that showed a bicycle in the garage of the home where the attacks occurred, which defense counsel claims would have bolstered Cervantes’s story that he entered Gabriel’s house to retrieve his bike; (3) failed to follow up on crime scene photos that showed there was no forcible entry into the house; (4) failed to investigate the route Cervantes took in arriving at Gabriel’s house; (5) failed to investigate other forensic evidence, specifically five cigarette butts, a beer can, and footprints outside the home that showed they were made before Cervantes entered the house, not afterwards, and therefore tended to undercut the prosecution’s theory of the crime; (6) failed to subject the prosecution’s revenge theory to adversarial scrutiny or investigation; (7) failed to investigate Gabriel’s “exculpatory” statement to police about Cervantes’s revenge motive; (8) failed to investigate or present evidence about who “Richard” was; and (9) abandoned an involuntary intoxication/drug psychosis defense based on consumption of psilocybin mushrooms laced with MDMA, based largely on a negative urine test conducted after Cervantes’s arrest, which Cervantes claims was unreliable and an insubstantial basis for rejecting the mushroom defense.

Second, he claims Kirkpatrick failed to adequately communicate with or prepare her expert witnesses, which caused her to “abandon[] important mental health and cognitive brain evidence that was not only material but crucial to the jury’s determination” of the specific intent required for many of the alleged offenses. Specifically, she cut off communication with Dr. Roderick Pettis, an expert psychiatrist hired by the defense, without even securing a copy of his detailed notes of an interview he had conducted with Cervantes. She also failed to obtain a recommended brain scan for Cervantes. And, when informed shortly before trial by a different defense expert, Dr. John Podboy, a clinical and forensic psychologist, that Cervantes may have been in a “dissociative state” at the time of the crimes, she decided not to call that expert as a witness and went to trial without investigating further.

And third, Cervantes contends the defense that Kirkpatrick did put on through Zehnder’s testimony was not a legally viable voluntary intoxication defense, primarily because she did not choose an appropriate expert to explain why his state of intoxication would have negated Cervantes’s formation of the specific intent required for the various crimes. Zehnder testified primarily about the physical effects of alcohol intoxication, such as slurred speech and impairment of motor skills. We agree with Cervantes that he would have been better served if Kirkpatrick had called a neuroscience expert who could have testified about the mental effects of alcohol intoxication and perhaps psilocybin intoxication on a person with Cervantes’s apparent cognitive deficits.

Where, as here, the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court’s factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725 [208 Cal.Rptr. 708].)

We agree with Cervantes that trial counsel should have done more to investigate leads developed by Pendergast and Barton. Kirkpatrick’s limited investigation of a psilocybin mushroom defense fell below the standard of objectively reasonable representation. Her minimal and ineffective communication with defense-retained experts caused her to make an uninformed decision in rejecting a theory of cognitive impairment as part of her voluntary intoxication defense. She chose as her only expert witness someone who was not qualified to opine on the mental impacts of extreme alcohol intoxication, much less on the combined effects of alcohol and psilocybin mushrooms on someone with Cervantes’s brain impairment.

Because Kirkpatrick’s performance leaves us without confidence in the outcome of the trial on the specific intent crimes other than burglary, we hold she was constitutionally ineffective. We therefore reverse the eight counts specified in the disposition. On the general intent sex offenses, assault with a deadly weapon, and burglary charges, however, we are satisfied Cervantes got a fair trial with a reliable result, and we affirm.

2. This Case Is Governed by Strickland, Not Cronic.

3. Cervantes’s Claims of Ineffective Assistance Do Not Affect the Jury’s Verdicts on the General Intent Crimes: Forcible Rape, Forcible Sodomy, Forcible Oral Copulation, and Assault with a Deadly Weapon.

4. Counsel’s Alleged Failures Were Not Prejudicial on the Burglary Conviction or the Burglary One Strike Findings.

a.Photograph of Cervantes’s Bicycle in Gabriel’s Garage

b.Photograph Showing There Was No Break-in

c.Footprints, Beer Can, and Cigarette Butts Outside the Home

d.Failure To Investigate Cervantes’s Route to Gabriel’s House

e.Cervantes’s Own Declaration Shows He Entered the House To Steal Alcohol

5. Failure To Investigate and Present Evidence Regarding the Calkins Case and the Tainted Mushroom Defense Was a Legitimate Tactical Decision.

6. Abandonment of the Mushroom Defense Without Further Investigation Was Objectively Unreasonable, But Was Not by Itself Prejudicial.

7. Failure To Adequately Investigate Potential Expert Testimony on Mental State Was Prejudicial on the Specific Intent Crimes: Attempted Murder, Torture, Aggravated Mayhem, and Two of the Sex Offenses.

a.The Importance of Pretrial Investigation

b.Factual Background

c.Weaknesses in the Voluntary Alcohol Intoxication Defense Actually Presented Could Have Been Resolved by Calling a Neuroscience Expert

d.Kirkpatrick’s Reasons for Not Using a Neuroscience Expert or Further Investigating a Dissociation/Brain Damage Defense Were Insufficient in Light of the Information Provided to Her by Drs. Pettis and Poclboy.

e.Kirkpatrick’s Faulty Investigation Requires Reversal of the Specific Intent Convictions, Except Burglary.

B. Proposition 57

1. Overview of This Section

Having concluded that we must reverse eight counts of conviction that required specific intent and will affirm seven counts, including the burglary conviction, we now turn to the impact on our disposition of Proposition 57, which was passed by the voters on November 8, 2016. Six weeks later, Cervantes sought and was granted permission to file a supplemental brief arguing that Proposition 57 should be applied retroactively to all nonfinal cases under the rationale of In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] (Estrada), where the Supreme Court held that a legislative reduction in the statutory penalty for a crime must be applied to all nonfinal cases. He contends Proposition 57 requires us to vacate the judgment entered below and remand the case for a “fitness” or “transfer” hearing in juvenile court, after which Cervantes would either be dealt with through the juvenile justice system, or else would be transferred by the juvenile court to adult court under Welfare and Institutions Code, section 707 for a new trial. In fact, he contends this procedure is mandated for any counts reversed on appeal and remanded for a new trial, even if Proposition 57 is not given retroactive effect. He then suggests that such a disposition would result in “split” jurisdiction between two courts, with reversed counts going to juvenile court and affirmed counts remaining in criminal court, which would violate the rule of In re Dennis J. (1977) 72 Cal.App.3d 755, 760-762 [140 Cal.Rptr. 463] that the same juvenile cannot have charges pending in both criminal court and juvenile court that might lead to conflicting orders from the two divisions. (But see Welf. & Inst. Code, § 707.01, subd. (a)(1) [allowing simultaneous jurisdiction].) Hence, he reasons, we may not reverse some counts and affirm others. A new trial of all counts is required.

We reject the argument that Proposition 57 gives Cervantes, in effect, a full “do over” on all counts despite the fact he has already been tried, convicted and sentenced, but we conclude that Proposition 57, even if not given retroactive effect—which we conclude is not mandated—nonetheless requires a fitness hearing. That hearing will, in effect, determine which department of the superior court the juvenile court or the adult criminal court will try any remaining counts on remand (should the People elect retrial) and will decide the consequences Cervantes faces for the offenses of which he stands convicted or that are found to be true following remand.

In arriving at this conclusion, we specifically reject Cervantes’s argument that he is entitled to a fitness hearing on retroactivity or equal protection grounds because: (1) the juvenile division and criminal division of superior court both have subject matter jurisdiction over statutorily specified crimes committed by minors; (2) the statutory amendments under Proposition 57 do not amount to a reduction of a penalty and are not subject to retroactive application under Estrada; and (3) failing to extend the new hearing procedure to Cervantes does not deprive him of equal protection because a prospective procedural change in the law that treats offenders differently depending upon when their crimes were committed does not violate equal protection. We ultimately agree, however, based on both the text of Proposition 57 and the ameliorative purpose behind it, that Cervantes is entitled to a fitness hearing before he may be retried or resentenced in adult court. The initiative measure fundamentally favors rehabilitation over punishment for juveniles and requires procedural changes to ensure that juveniles facing trial in adult criminal court will receive a judicially conducted fitness hearing first. Because Cervantes once again faces a trial or resentencing on remand, he is entitled under Proposition 57 to a transfer to juvenile court for a fitness hearing, as described in Welfare and Institutions Code section 707, before retrial or resentencing.

2. Procedure for Transferring a Minor to Adult Court Under Proposition 57

Historically, California required a judicial determination of unfitness for juvenile court before a minor could be prosecuted in adult court. (See Stats. 1961, ch. 1616, § 2, pp. 3459, 3485; Stats. 1975, ch. 1266, § 4, p. 3325; Juan G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1489 [147 Cal.Rptr.3d 816], & fn. 4 (Juan G.).) Beginning in March 2000 and continuing until the adoption of Proposition 57, however, the district attorney was authorized, as a matter of executive discretion, to file a criminal action against a juvenile in certain defined circumstances, rather than filing the case in juvenile court, a practice known as “direct filing” or “discretionary direct filing.” (See Welf. & Inst. Code, former § 707, subd. (d); Voter Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, § 26, pp. 126-127 (Proposition 21); see generally Manduley v. Superior Court (2002) 27 Cal.4th 537, 548-550 [117 Cal.Rptr.2d 168, 41 P.3d 3] (Manduley); Juan G., at p. 1489 & fn. 4.) Some crimes, like Cervantes’s, were considered so serious by the voters that, if committed by a minor age 14 or older, juvenile court was not an option; filing in adult criminal court was mandated by statute (“mandatory direct filing”). (Welf. & Inst. Code, former § 602, subd. (b); see Proposition 21, § 18, p. 125; Juan G., at pp. 1488-1489.)

Proposition 57 was designed to undo Proposition 21. After the passage of Proposition 57, the charging instrument for all juvenile crimes must be filed in juvenile court. (See Welf. & Inst. Code, § 602.) While prosecuting attorneys may move to transfer certain categories of cases to criminal court (Welf. & Inst. Code, § 707, subd. (a)(1)), they have no authority to directly and independently file a criminal complaint against someone who broke the law as a juvenile, even by committing the crimes that previously qualified for mandatory direct filing. In cases where transfer to adult court is authorized (§ 707, subd. (b)) (and not all cases qualify), the juvenile court now has sole authority to determine whether the minor should be transferred. (Welf. & Inst. Code, § 707, subd. (a)(2); see Brown v. Superior Court (2016) 63 Cal.4th 335, 340-341 [203 Cal.Rptr.3d 1, 371 P.3d 223] [describing history and general provisions of the initiative measure].) Thus, Proposition 57 effectively guarantees a juvenile accused felon a right to a fitness hearing before he or she may be sent to the criminal division for prosecution as an adult.

3. Proposition 57 Is Not Retroactive.

Cervantes relies on two provisions of Proposition 57 in advancing his claim of retroactivity: (1) Welfare and Institutions Code, former section 602 was amended to provide that jurisdiction in the juvenile court is what Cervantes calls “exclusive”; and (2) Welfare and Institutions Code, former section 707 was amended to require a fitness hearing in juvenile court as a prerequisite for transfer of a juvenile to adult criminal court. (§ 707, subd. (a).) He relies on voter intent to invest greater efforts in rehabilitation— “especially for juveniles”—in order to stop the “revolving door” of crime. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141 (2016 Voter Guide).) Because a juvenile court has a time limit on jurisdiction over its wards (e.g., Welf. & Inst. Code, §§ 607, 607.1, 1769), and because its focus is on rehabilitation, Cervantes argues the new transfer provisions effectively mandate more lenient treatment—or a reduction in punishment—such that Proposition 57 must be applied retroactively under Estrada.

We reject Cervantes’s position on retroactivity because: (1) jurisdiction is concurrent in crimes that subject the juvenile offender to adult prosecution; (2) Estrada’s reasoning does not support a retroactive application; and (3) subsequent Supreme Court cases interpreting Estrada have limited it to situations in which there is, strictly speaking, a “ ‘ “legislative mitigation of the penalty for a particular crime.” ’ ” (People v. Brown (2012) 54 Cal.4th 314, 325 [142 Cal.Rptr.3d 824, 278 P.3d 1182] (Brown).)

a. Section 602 Does Not Deprive the Criminal Division of Concurrent Subject Matter Jurisdiction over Statutorily Specified Crimes Committed by Juveniles.

With the passage of Proposition 57, Welfare and Institutions Code section 602 now reads: “Except as provided in Section 707, any person who is under 18 years of age when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” Cervantes contends this gives the juvenile court “exclusive jurisdiction” over his case and the cases of all juvenile offenders whose cases are not yet final on appeal—at least until a fitness hearing is conducted.

Yet, the statute does not use the term “exclusive,” and it assigns jurisdiction over all juvenile criminal matters to the juvenile court explicitly subject to the exceptions in Welfare and Institutions Code section 707. Section 707 applies to “a minor . . . alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of any felony criminal statute, or of an offense listed in subdivision (b) when he or she was 14 or 15 years of age.” Section 707, subdivision (b) lists 30 serious crimes that subject even the youngest juveniles eligible for criminal prosecution under section 707, ages 14 and 15, to adult prosecution.

We conclude, for crimes that qualify the juvenile offender for transfer to adult court, subject matter jurisdiction is concurrent between the criminal division and the juvenile division. “The juvenile court and the criminal court are divisions of the superior court, which has subject matter jurisdiction over criminal matters and civil matters, including juvenile proceedings. (See Cal. Const., art. VI, § 10.) When exercising the jurisdiction conferred by the juvenile court law, the superior court is designated as the juvenile court. (Welf. & Inst. Code, § 245.) Accordingly, when we refer herein to the jurisdiction of the juvenile court or the jurisdiction of the criminal court, we do not refer to subject matter jurisdiction, but rather to the statutory authority of the particular division of the superior court, in a given case, to proceed under the juvenile court law or the law generally applicable in criminal actions. (See In re Harris (1993) 5 Cal.4th 813, 837 [21 Cal.Rptr.2d 373, 855 P.2d 391].)” (Manduley, supra, 27 Cal.4th at p. 548, fn. 3.) To the extent Cervantes suggests Proposition 57 deprives the criminal court of fundamental subject matter jurisdiction over a juvenile felon upon remand after appeal, we disagree.

Proposition 57’s amendment to Welfare and Institutions Code section 602 does not govern where jurisdiction must be sited permanently, nor does it either prescribe or prohibit revisiting the jurisdictional issue when a case is remanded for a new trial. Being subject to Welfare and Institutions Code section 707, subdivision (b), which lists the crimes that may qualify a 14 year old for transfer to criminal court, Cervantes is subject to concurrent jurisdiction in both criminal and juvenile divisions of superior court. Here, the criminal division lawfully assumed jurisdiction under pre-Proposition 57 law and retained jurisdiction throughout the trial; section 602 does not oust the criminal division of jurisdiction upon remand after an appeal.

b. Estrada’s Reasoning Does Not Support Retroactive Application of Proposition 57.

New statutes or changes in statutes ordinarily are applied prospectively only “absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 [279 Cal.Rptr. 592, 807 P.2d 434] (Tapia); see also § 3; Brown, supra, 54 Cal.4th at pp. 319-323.) Nevertheless, a well-recognized exception prevails when a criminal statute reduces the penalty for a given crime; in that circumstance, the new, less punitive statute applies to all defendants whose convictions are not yet final on appeal. (Estrada, supra, 63 Cal.2d at p. 745.)

Estrada involved an escape without force or violence from the California Rehabilitation Center at a time when that offense required a minimum one-year additional sentence and a two-year minimum after being returned to custody before parole consideration. (Estrada, supra, 63 Cal.2d at p. 743.) Between the time of the escape and the time Estrada was convicted, however, the governing statutes were amended to reduce the minimum term to six months for nonviolent escape and to require no minimum period before parole consideration. (Id. at pp. 743-744.) Estrada was being held in custody solely because of the minimum terms required by the former version of the statute and would have been entitled to release under the new version. (Id. at p. 744.) Finding the reduction in penalty amounted to a legislative decision that the prior law had been too harsh, the Court held the amended statutes applied to the petitioner. ‘“[L]egislative mitigation of the penalty for a particular crime” called for the retroactive application of the reduced penalty, effectively establishing a rule that any law reducing the penalty for a crime was intended to apply to all nonfinal judgments. (Id. at p. 745; see also People v. Conley (2016) 63 Cal.4th 646, 656 [203 Cal.Rptr.3d 622, 373 P.3d 435] [Estrada s holding “reflects a presumption about legislative intent, rather than a constitutional command”].)

c. The Supreme Court Has Limited Estrada to Statutory Changes That Mitigate the Penalty for a Particular Offense.

Cervantes argues that Proposition 57 amounts to a reduction in punishment, requiring us to find it retroactive under Estrada. But later Supreme Court cases have limited Estrada’s retroactivity exception to statutory changes that mitigate the penalty for a particular crime, which is not true of Proposition 57.

In 1991, in response to Proposition 115 (Proposition 115), which, among other things, gave judges in criminal trials the power to conduct voir dire instead of attorneys (see Code Civ. Proc., § 223), Tapia, supra, 53 Cal.3d 282 held most of the new procedures, including that relating to voir dire, were not retroactive under Estrada. (Id. at p. 287.) Tapia emphasized that the retroac-tivity exception turns on the type of legal change effectuated by the new or amended statute: changes in direct penal consequences like the one under consideration in Estrada, would call for retroactive application, while those like the one involved in Tapia that “address the conduct of trials which have yet to take place, rather than criminal behavior which has already taken place,” are to be applied prospectively. (Tapia, at pp. 288-289.) Under that rubric, the transfer procedure dictated by Proposition 57 is not one that addresses “criminal behavior which has already taken place,” but is more correctly identified as one “addressfing] the conduct of trials which have yet to take place.” (Tapia, at p. 288.) This suggests its application should be prospective only.

Brown, supra, 54 Cal.4th 314 even more strongly supports a prospective application. Brown dealt with a situation more closely linked to the length of punishment for an offense than Proposition 57 is. Specifically, Brown addressed the legislative changes in presentence conduct credits in 2010-2011, which first gave pretrial detainees more generous conduct credits, then reverted to less generous credits, and finally switched back again to more generous credits. (Brown, at pp. 317-318, 320.) The Supreme Court unanimously decided that a jail inmate awaiting trial and sentencing should earn credits at the rate in effect at the time he served the days in jail, not at the more generous rate available when he was sentenced. (Id. at pp. 319-330; see also In re Strick (1983) 148 Cal.App.3d 906, 909-914 [196 Cal.Rptr. 293] [legislation to allow greater worktime credits in prison held not to apply retroactively and not to violate equal protection].)

Brown recognized that a change in credits-earning eligibility would affect the length of a prisoner’s time in custody, and in that sense would have a direct effect on punishment (Brown, supra, 54 Cal.4th at p. 325), but nevertheless held Estrada did not apply. The Brown court called the Estrada rule a “contextually specific qualification to the ordinary presumption that statutes operate prospectively.” (Id. at p. 323.) It reasoned, “the rule and logic of Estrada is specifically directed to a statute that represents ‘ “a legislative mitigation of the penalty for a particular crime” ’ (Estrada, [supra, 63 Cal.2d] at p. 745, italics added) because such a law supports the inference that the Legislature would prefer to impose the new, shorter penalty rather than to ‘ “satisfy a desire for vengeance” ’ (ibid.). The same logic does not inform our understanding of a law that rewards good behavior in prison.” (Brown, at p. 325.)

We find the rationale underlying Estrada equally inapplicable to the procedural changes implemented by Proposition 57. While Proposition 57 will have a substantive impact on time in custody in some cases—sometimes a big impact—the transfer procedure required under Welfare and Institutions Code section 707 does not resemble the clear-cut reduction in penalty involved in Estrada. Although it is now the juvenile court, rather than the district attorney, that makes the decision whether a juvenile felon will be hied as an adult, we may presume that many cases filed in juvenile court will still end up in adult court (with adult penalties) under Proposition 57, after the fitness hearing is held. Proposition 57 mitigates the penalty for a particular crime even less directly than the jail credits at issue in Brown. More like the voir dire procedure in Tapia, which affected who performed a particular function in the judicial process, Proposition 57 may or may not in some attenuated way affect punishment, but it is not a direct reduction in penalty as required for retroactivity under Estrada. (Brown, supra, 54 Cal.4th at p. 325.)

4. Applied Prospectively, Proposition 57 Requires a Fitness Hearing Before a Juvenile Felon Is “Tried in Adult Court” Initially or on Remand.

a. Textual Provisions of Proposition 57 and Principles of Statutory Construction Bearing on This Issue

Section 2 of Proposition 57, titled “Purpose and Intent,” “[r]equire[s] a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.” (2016 Voter Guide, supra, text of Prop. 57, § 2, p. 141.) The Legislative Analyst spoke even more strongly: “the only way a youth could be tried in adult court is if the juvenile court judge in the hearing [under Welfare and Institutions Code section 707, subdivision (a)(2)] decides to transfer the youth to adult court.” (2016 Voter Guide, supra, analysis of Prop. 57 by Legis. Analyst, p. 56.) Thus, the phrase, “tried in adult court”—or the prospect of being tried in adult court upon the filing of a transfer motion— appears to be the trigger for a juvenile’s right to a fitness hearing. This case requires us to confront whether prospective application of Proposition 57 requires a fitness hearing if a juvenile felon has had one trial in adult court but is about to be tried again because his case is being remanded for partial retrial or resentencing.

The key statutes amended to effectuate the juvenile provisions of Proposition 57 were Welfare and Institutions Code sections 602 and 707, the latter of which provides for the mechanics of the fitness hearing. (2016 Voter Guide, supra, text of Proposition 57, §§ 4.1 & 4.2, pp. 141-142.) Section 707 describes the ordinary chronology of a fitness hearing when charges are filed after Proposition 57’s effective date. (See part H.B.2., ante, and part H.B.4.C., post.) It does not purport to explore the conduct of or entitlement to such a proceeding on remand. Section 707 describes its reach broadly, indicating it applies “[i]n any case in which a minor is alleged to be a person described in Section 602.” (Welf. & Inst. Code, § 707, subd. (a)(1), italics added.) We see nothing in Welfare and Institutions Code section 707 that requires the allegation to be pending in juvenile court at the time of the fitness hearing. One of the allegations included in each of the counts in the amended information in criminal court was that Cervantes was “14 years of age” at the time of his crimes, citing Welfare and Institutions Code former section 602, subdivision (b). Thus, in facing retrial on remand, Cervantes facially qualifies for a fitness hearing. Nothing in Proposition 57 indicates the offense had to occur on or after the effective date of Proposition 57 in order for the new procedures to apply. (Cf. John L. v. Superior Court (2004) 33 Cal.4th 158, 169 [14 Cal.Rptr.3d 261, 91 P.3d 205]; In re Chong K. (2006) 145 Cal.App.4th 13, 18-19 [51 Cal.Rptr.3d 350].) The amendment to section 602 is also critically important to understanding the availability of a fitness hearing because it strikes out entirely former subdivision (b) and its reference to mandatory direct filing, thus raising the question whether a criminal prosecution may be reinitiated on retrial where the original filing was by authority of former subdivision (b). Together, these two sections provide a general framework for a transfer hearing in all post-Proposition 57 initiated juvenile cases, but neither sheds much light on how section 707 should be applied, if at all, in the case of a remand.

“In interpreting a voter initiative . . . , we apply the same principles that govern the construction of a statute.” (People v. Canty (2004) 32 Cal.4th 1266, 1276 [14 Cal.Rptr.3d 1, 90 P.3d 1168] (Canty).) Óf course, when the intent of a statute is clear from the plain meaning of its text, we follow its mandates without looking elsewhere. (Greb v. Diamond Internat. Corp. (2013) 56 Cal.4th 243, 256 [153 Cal.Rptr.3d 198, 295 P.3d 353]; People v. Leal (2004) 33 Cal.4th 999, 1008 [16 Cal.Rptr.3d 869, 94 P.3d 1071].) Clear intent, clearly expressed, is decisive. But Welfare and Institutions Code section 707, to the extent it provides clues to the availability of a fitness hearing on remand, does not explicitly or by clear implication either authorize or preclude such a procedure. It does anticipate the fitness hearing will be conducted “prior to the attachment of jeopardy.” (§ 707, subd. (a)(1).) As we shall discuss, that language naturally raises a question as to whether, on a retrial after remand, jeopardy attaches anew with the swearing of a new jury, or whether the reference to “attachment of jeopardy” should be construed as a reference to the attachment of jeopardy at the first trial. We find the language of section 707 to be ambiguous on the issue before us, which requires that we consult additional interpretive aids in understanding its meaning.

“ ‘[T]he “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.’ ” (Canty, supra, 32 Cal.4th at p. 1276; accord, Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) “When construing a statute or an initiative measure, we are obliged to give effect to every phrase and paragraph of the law, leaving no part useless or deprived of meaning.” (People v. Nava (1996) 47 Cal.App.4th 1732, 1737 [55 Cal.Rptr.2d 543].) “Because the most reasonable interpretation of a [statutory] provision [enacted as a voter initiative] may be reflected, in part, by evidence of the enacting body’s intent beyond the statutory language itself, in its history and background [citation], [a court] also considers] the measure as presented to the voters with any uncodified findings and statements of intent. In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration. [Citations.] Although such statements in an uncodified section do not confer power, determine rights, or enlarge the scope of a measure, they properly may be utilized as an aid in construing a statute.” (Canty, supra, at p. 1280.) In determining voter intent, we may also look to the ballot arguments favoring the measure, the Legislative Analyst’s interpretation, and the history of the initiative measure. (Amwest Sur. Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1256 [48 Cal.Rptr.2d 12, 906 P.2d 1112].)

Applying those guidelines, additional uncodified provisions of Proposition 57 inform our interpretation of its scope. Uncodified section 5 mandates that Proposition 57 be “broadly construed to accomplish its purposes,” and that section actually prohibits the Legislature from amending Welfare and Institutions Code sections 602 and 707 unless “such amendments are consistent with and further the intent of this act.” (2016 Voter Guide, supra, text of Prop. 57, § 5, p. 145.) Uncodified section 9 also advises us to “liberally construe[] [Proposition 57] to effectuate its purposes.” (2016 Voter Guide, supra, text of Prop. 57, § 9, p. 146.)

In reaching our conclusion about the availability of a fitness hearing on remand, we employ the usual rules of construction to ascertain the intent of the electorate, which of course is our ultimate objective in any endeavor to construe a voter initiative. (Canty, supra, 32 Cal.4th at p. 1276.) We find especially significant, indeed controlling, the tenet requiring us to read a statute in a manner to effectuate its underlying purpose. (Id. at pp. 1276-1277 [“The intent of the law prevails over the letter of the law, and ‘ “the letter will, if possible, be so read as to conform to the spirit of the act.” [Citation.]’ ”]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281] [“The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers.”].) With these principles and provisions in mind, we turn to the task of determining Proposition 57’s impact on this case.

b. The Ameliorative Intent Underlying Proposition 57 Is Implemented Largely Through the Requirement of an Impartial Judicial Fitness Hearing To Inquire into the Juvenile Felon’s “Behavioral Patterns and Social History” and To Determine His or Her Amenability to Rehabilitation Through Juvenile Court.

Taking a broad view of the stated “Purpose and Intent” of Proposition 57 in section 2 of the initiative measure, we must first acknowledge it as a dramatic change of course and a ringing endorsement of rehabilitation as opposed to pure punishment, especially