Reset A A Font size: Print

Court of Appeal, Fourth District, Division 3, California.

Wayne Ichija YOSHISATO, Petitioner, v. SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party in Interest.


Decided: August 05, 1991

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defenders, for petitioner. Fern M. Laethem, State Public Defender, Albert W. Brodie and Mary K. McComb, Deputy State Public Defenders, as amici curiae on behalf of petitioner. No appearance by respondent. Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., John D. Conley, Asst. Dist. Atty., Douglas Woodsmall and Gregg L. Prickett, Deputy Dist. Attys., for real party in interest. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster and Frederick R. Millar, Jr., Deputy Attys. Gen., as amici curiae on behalf of real party in interest.


We are called upon to decide whether section 10 of Proposition 115, an omnibus criminal law initiative approved by the voters at the June 1990 election, conflicts with section 16 of Proposition 114, a measure receiving a greater number of votes at the same election.   The issue arises in the context of a challenge by Wayne Ichija Yoshisato to an information that charges him with numerous offenses, including first degree murder, and alleges two special circumstances under Penal Code section 190.2, subdivision (a)(17)(xi) (rape with a foreign instrument), purportedly added with the passage of Proposition 115.1  But Proposition 114's rendition of section 190.2 does not contain a provision comparable to subdivision (a)(17)(xi).   If Yoshisato is convicted as charged, Proposition 115's version of section 190.2 mandates capital punishment or life in prison without parole.   Under Proposition 114's version, however, Yoshisato faces a maximum sentence of 25 years to life.   We conclude the versions of Penal Code section 190.2, as found in Propositions 114 and 115, conflict within the meaning of article II, section 10, subdivision (b) of the California Constitution.   Since Proposition 114 received more votes, Proposition 115's rendition of section 190.2 never became operative.


Proposition 114 had its genesis in the California Legislature as Senate Bill No. 353.   The legislation was the initial step of an effort to amend Penal Code section 190.2, which was added in 1978 as part of the Death Penalty Initiative (approved by voters on November 7, 1978).   The bill passed as chapter 1165 and was signed by the Governor on September 30, 1989.   (Stats.1989, ch. 1165, p. 3903.)   Section 16 of the chapter rewrote section 190.2 to be gender neutral and to redefine the individuals who qualified as peace officers in the special circumstances list.   However, this particular bill could be effective only if submitted and approved by the electorate.   (See Cal. Const., art. II, § 10, subd. (c);  see also Stats.1989, ch. 1165, § 51, p. 3934.)   Such submission took place in the June 5, 1990 primary election, where chapter 1165 was reincarnated as Proposition 114.

Proposition 115, entitled by its framers as the “Crime Victims Justice Reform Act,” appeared on the same ballot.   Among its numerous provisions was a significant revision of section 190.2, including two additions to subdivision (a)(17).   They provided that if “[t]he murder was committed while the defendant was engaged in or was in [sic ] accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit” mayhem (subd. (a)(17)(x)) or rape by foreign instrument (subd. (a)(17)(xi)), a defendant's punishment would be either death or life in prison without the possibility of parole.

Each initiative was drafted to completely reenact section 190.2.   Some, but not all, of the gender-neutralizing changes in the Proposition 114 version found their way into Proposition 115.   Otherwise, none of the amendments proposed by one proposition appeared in the other.   Both initiatives passed;  Proposition 114 garnered more votes.2

The initiatives collided on January 22, 1991, when the Orange County District Attorney filed the multi-count information against Yoshisato.   Because the alleged conduct giving rise to the special circumstance allegations is not enumerated in the version of section 190.2 contained in Proposition 114, the initiative that received the greater number of votes, Yoshisato demurred to those allegations, arguing they were not public offenses for which he could be subjected to either the death penalty or life in prison without the possibility of parole.

The superior court overruled the demurrer.   The judge first observed, “Neither Proposition 114 nor the relevant provisions of Proposition 115 purported to create a comprehensive regulatory scheme.”   He added, “The interpretation problems presented by competing initiatives, as explained by our Supreme Court in [Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 274 Cal.Rptr. 787, 799 P.2d 1220] are not present here.   The will of the voters who approved both measures can be given effect.”   We cannot agree with the superior court's rationale or conclusion and issue a peremptory writ of mandate accordingly.3


 Before discussing the merits of the petition, we dispatch one argument by the Attorney General.   In the role of amicus curiae, he contends the Taxpayers opinion announces a “new rule of law” and cannot be applied retroactively to a measure such as Proposition 115.   In Taxpayers our Supreme Court invalidated an entire initiative (Proposition 68) that was approved by the electorate, but received fewer votes than a competing initiative (Proposition 73) on the same ballot.   The much debated footnote 12 of Taxpayers explains that the holding of the opinion is limited to cases of precisely that ilk:  “We hold only that under section 10[, subdivision] (b) [of the California Constitution] an initiative is inoperative in its entirety if the voters adopt, by a higher vote, an alternative comprehensive regulatory scheme governing the same subject.   Our construction of section 10 [, subdivision] (b) does not foreclose operation of an initiative measure that receives an affirmative vote simply because one or more minor provisions happen to conflict with those of another initiative principally addressed to other aspects of the same general subject.   In the latter circumstance ․ the remainder of the initiative can be given effect.”  (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d at p. 771, fn. 12, 274 Cal.Rptr. 787, 799 P.2d 1220, italics added.)   In other words, Taxpayers is intended to be the first and last word on the judicial process of invalidating an entire initiative.   It does not purport to, nor does it, revolutionize the manner in which a court exercises the limited task of determining whether distinct provisions in two initiatives can coexist.   The rules it espouses on that subject are well settled.   Thus, Taxpayers does not announce “a new rule of law,” and therefore applies to initiative measures passed prior to the date that decision became final.  (See Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 993, 258 Cal.Rptr. 592, 772 P.2d 1059.)


 Article IV, section 1 of the California Constitution gives the power to enact statutes to the Legislature, reserving, however, to “the people ․ themselves the powers of initiative and referendum.”   Whether by legislative enactment or will of the electorate, statutory amendments must be made in a prescribed manner.  Article IV, section 9 provides, “A section of a statute may not be amended unless the section is re-enacted as amended.”   Government Code section 9605 goes hand in hand with that provision and explains that “[w]here a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form.   The portions which are not altered are to be considered as having been the law from the time when they were enacted;  the new provisions are to be considered as having been enacted at the time of the amendment;  and the omitted portions are to be considered as having been repealed at the time of the amendment․”  The rationale for the mandate of article IV, section 9 was expressed by the Court of Appeal years ago:  “The clear purpose ․ is to avoid the confusion which almost always results when amendments are attempted by way of directing the insertion, omission or substitution of certain words, or by adding a provision, without setting out the entire context of the section to be amended․”  (Glendale Unified School Dist. v. Vista Del Rossmoyne Co. (1965) 232 Cal.App.2d 493, 498, 42 Cal.Rptr. 899.)   More recently, the Supreme Court observed “that since article IV, section 9, requires reenactment, the only effect of section 9605 is to avoid an implied repeal and reenactment of unchanged portions of an amended statute, ensuring that the unchanged portion operates without interruption.”  (In re Lance W. (1985) 37 Cal.3d 873, 895, 210 Cal.Rptr. 631, 694 P.2d 744.)

The practical result of article IV, section 9 and Government Code section 9605 is that voters are never asked to approve statutory excerpts.   Instead, they are presented with a complete version of a particular statute, which they are to accept in toto or reject in toto.   In the June 1990 election, for example, section 16 of Proposition 114 and section 10 of Proposition 115 began with identical language:  “Section 190.2 of the Penal Code is amended to read [as follows].”   What followed in each, however, was quite different.   And “there's the rub.” 4

Ever since the death penalty provisions were added by initiative in November 1978, a defendant convicted of first degree murder can be subject to capital punishment only if the murder was committed under one or more of the special circumstances enumerated in section 190.2.   As originally enacted, section 190.2 did not authorize capital punishment for a defendant who committed first degree murder during the course of a rape with a foreign instrument.

Proposition 114 maintained existing law on this point.   The changes Proposition 115 proposed in section 190.2 did not.   That measure made rape with a foreign instrument a special circumstance mandating either the death penalty or life imprisonment without the possibility of parole.   Both initiatives, however, were presented to the electorate as complete reenactments of section 190.2.   Nothing in either made reference to the other in order to piece together a quilt that was neither wholly the rendition of section 190.2 as presented in Proposition 114 nor the one in Proposition 115.

Thus the stage was set for conflict.   If the prosecution proves petitioner murdered the victim during the course of rape with a foreign object, capital punishment or life in prison without possibility of parole is mandated under Proposition 115's version of section 190.2.   Capital punishment or life imprisonment without parole is not authorized, however, for the same conduct under Proposition 114's version of section 190.2;  under that scheme, petitioner would face a sentence of 25 years to life.  (See § 190, subd. (a).)

Discord is readily apparent.   The California Constitution, however, provides the means to resolve it:  “If the provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.”  (Cal. Const., art. II, § 10, subd. (b).)

It is difficult to imagine clearer language.   The constitutional provision simply restates a fundamental tenet of democracy—the one with the most votes wins.   Proposition 114 received almost 750,000 more votes than Proposition 115.   That means only its version of section 190.2 is valid because section 10 of Proposition 115 never became operative.  (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 255, 186 Cal.Rptr. 30, 651 P.2d 274 [“it may be that a substantial part of the bail provisions of Proposition 8 never took effect.   We are advised that Proposition 4 on the June 1982 ballot received a greater number of votes than Proposition 8, in which event Proposition 4 would prevail as to those matters inconsistent with the latter measure”].)

We recognize the “cardinal rule of statutory construction [is] that statutes relating to the same subject matter must be read together and reconciled whenever possible.  [Citations.]  This rule applies to initiative measures enacted as statutes as well as to acts of the Legislature.”  (Estate of Gibson (1983) 139 Cal.App.3d 733, 736, 189 Cal.Rptr. 201.)   But the rule gives way to the mandate of article II, section 10 when the conflict is “irreconcilable.”  (Ibid.)

Gibson dealt with 1982's Propositions 5 and 6, repealing and reenacting gift and inheritance taxes.   Proposition 5 provided for retroactive application;  Proposition 6 did not.   The Court of Appeal's analysis was short and simple:  “The language of the disputed provisions is unambiguous․  Clearly, both provisions cannot be given effect.”  (Id. at p. 736, 189 Cal.Rptr. 201.)   The rationale applies with equal force here.

The language in each version of section 190.2 is unambiguous.   It is also irreconcilable:  Conduct which mandates death or life in prison without the possibility of parole under one version subjects a criminal defendant to no more than 25 years to life with the possibility of parole under the other.   Proposition 114 carried election day;  its provisions alone control.

Although not in so many words, the Supreme Court has essentially acknowledged that Proposition 115's version of section 190.2 conflicts with the version in Proposition 114.   In Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434, the court recognized that Proposition 115's addition of two offenses to the special circumstances list would “change the legal consequences of criminal behavior to the detriment of defendants [and] cannot be applied to crimes committed before [its] effect [sic ] date.”  (Id. at p. 297, 279 Cal.Rptr. 592, 807 P.2d 434.)5  In other words, the proposed statute would have such a conflict with the pre-existing law, i.e., the law perpetuated by Proposition 114, that retroactive application of the special circumstance amendments in Proposition 115 was out of the question.

This analysis leads us to but one conclusion.   Although the petition before us concerns a solitary subdivision in Proposition 115's version of Penal Code section 190.2, our ruling is necessarily broader than a determination that subdivision (a)(17)(xi) is not part of this state's statutory scheme.   Our holding is this:  None of Proposition 115's proposed amendments to section 190.2 ever took effect.   Besides adding mayhem and rape with a foreign instrument to the special circumstances lists, Proposition 115 also proposed to (1) eliminate the requirement that special circumstances be “charged”;  (2) authorize the death penalty for a defendant who intentionally killed a witness to prevent testimony in a juvenile proceeding;  (3) eliminate the requirement that torture requires “proof of the infliction of extreme physical pain no matter how long its duration”;  (4) eliminate, in the case of an actual killer, the intent to kill requirement for imposition of the death penalty unless the enumerated special circumstance requires an intent to kill;  and (5) authorize, in the case of a defendant who is not the killer, the death penalty if the defendant acted “with reckless indifference to human life and [was] a major participant” in the crime.   None of these changes was included in Proposition 114's version of section 190.2.   Thus, since Proposition 115's proposed amendments to section 190.2 are inconsistent with the amendments in Proposition 114, they never became effective.  (Cal. Const., art. II, § 10, subd. (b);  Brosnahan v. Brown, supra, 32 Cal.3d at p. 255, 186 Cal.Rptr. 30, 651 P.2d 274.)


This opinion would not be complete without recounting several postelection events which cast serious doubt on the prosecution's blandishments that the will of the people will be thwarted unless the provisions of Proposition 114 are cast aside in favor of those in Proposition 115.   The electorate first spoke at the June 1990 primary election when Proposition 114 tallied more votes.   Voters spoke again five months later when Proposition 129 was placed on the November ballot.   Section 15 of that measure proposed to amend section 190.2 by engrafting Proposition 115's amendments to the version contained in Proposition 114.   But Proposition 129 did not receive a majority of votes.   Legislation was then introduced to accomplish what Proposition 129 failed to do.  (Assem.Bill No. 96 (1991 Reg.Sess.).)   It, too, was defeated.

Despite the failure of Proposition 115's rendition of section 190.2 to ever finish ahead in the balloting, the Attorney General insists “the electorate has unambiguously demonstrated its desire to pass two non-competing pro-law enforcement initiatives, and its intent that both be given effect.   Only refusing to give effect to both initiatives would be ‘thwarting the will of the electorate.’ ”   This argument ignores two significant points.   First, it is impossible to give effect to both versions of section 190.2.   Where the renditions are different, they are legally and factually incompatible.   Second, this contention has already been rejected by the Supreme Court:  “The [Court of Appeal] assumed that because a majority of voters approved both initiatives, they intended that both take effect to the greatest extent possible.   This assumption, however, is incapable of proof.   That some voters would have been satisfied with the adoption of either proposition does not suggest that they wanted both, or that the same voters cast a majority of the affirmative votes for each initiative.”  (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com., supra, 51 Cal.3d at p. 760, 274 Cal.Rptr. 787, 799 P.2d 1220, italics in original, fn. omitted.)   These conclusions, explained the court, were “nothing more than [illustrations of] the analytical difficulty and practical impossibility of implementing the presumed, but in fact unknown, will of the electorate by judicially merging competing initiative regulatory schemes.”  (Id. at p. 764, 274 Cal.Rptr. 787, 799 P.2d 1220.)   We concur.

As in Taxpayers, nothing in this record substantiates any theory as to why the electorate voted as it did.   The parties have cited no authority which permits us to look beyond the language of an initiative and its analysis, as set forth in the voter information pamphlet, to construe an initiative's provisions.   Nor have we unearthed any.   It is often difficult enough to discern legislative intent;  it is well nigh impossible to ascribe electoral motive.6  And even if we knew the former, it would provide no help in deciphering the latter:  “The opinion of drafters or of legislators who sponsor an initiative is not relevant since such opinion does not represent the intent of the electorate and we cannot say with assurance that the voters were aware of the drafters' intent.”  (Taxpayers, supra, 51 Cal.3d at p. 765, fn. 10, 274 Cal.Rptr. 787, 799 P.2d 1220.)

Relevancy and philosophical considerations aside, the contention by prosecutorial offices that any measure is “pro-law enforcement” strikes us as disingenuous and miscasts the role of these agencies in our society.   The district attorney and Attorney General are sworn to enforce the law regardless of whether they are of the opinion that a particular statute or constitutional provision makes their job easy, difficult, or more satisfying.   The argument carried to its logical extreme would characterize the California Supreme Court as “anti-law enforcement” given its decision in Raven v. Deukmejian (1990) 52 Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077, where the court struck down another section of Proposition 115.   Indeed, many provisions in the United States and California Constitutions might be labeled as anti-law enforcement.   But a government of limited powers always subjects law enforcement to the rule of law.   The “pro-law enforcement” argument does no more than beg the question.   Restraints on those who enforce the law are at the very core of our form of government.

We close with a final observation.   It would have taken the Legislature months to accomplish the number of constitutional and statutory changes found in Proposition 115.   Substantial legal research and budgetary analysis would have been conducted, culminating in public hearings and debate.   Considerable care would have been taken to ensure that the new provisions did not conflict with each other or with existing law.   The initiative process, however, lacks these cogitative, procedural, and fiscal safeguards.   Fortunately, the California Constitution provides the blade to cut the Gordian knot created when voters pass contradictory measures which, when read together, are as complex as Propositions 114 and 115.   If any provision of one proposition conflicts with that of a measure receiving more votes, the runner-up loses.   Period.

Article II, section 10, subdivision (b) of the Constitution is certainly not revolutionary in this regard.   The principle is found everywhere, from Olympic competition to Little League, from presidential elections to prom queen voting.   All the lawyers and alchemists in the world cannot make a gold medalist out of a second place finisher.   Proposition 115 did not receive as many votes as Proposition 114.   Its version of section 190.2 conflicts with the version approved by more voters via Proposition 114.  Section 10 of Proposition 115, the runner-up in the election, never became operative.


The alternative writ is discharged.   All previous stays are dissolved.   Let a peremptory writ of mandate issue directing the superior court to sustain petitioner's demurrer to the information.


1.   All statutory references are to the Penal Code.   All unparticularized subdivision references are to section 190.2.

2.   Proposition 114 received 3,435,095 “yes” votes, which translates to 71.12 percent of the total votes cast in the contest.   By contrast, Proposition 115 received only 2,690,115 votes, or 57.03 percent of the votes.

3.   We granted an alternative writ on April 11, 1991, for the limited purpose of reviewing “the propriety of the special circumstance allegation.”   We issued a stay at that time only for the commencement of trial.   The district attorney is not seeking the death penalty;  we are advised that Yoshisato posted bail and is not in custody.

4.   Shakespeare, Hamlet, Act III, Scene 1, line 64.

5.   In Tapia a defendant was accused of committing a capital offense before the passage of Proposition 115.   He sought extraordinary relief when the superior court ruled it would conduct voir dire under the new statute added by Proposition 115.   The Supreme Court determined which portions of the initiative were entitled to retrospective application (“[those] addressing the conduct of trials, and certain other provisions changing the law to the benefit of defendants”) (Tapia v. Superior Court, supra, 53 Cal.3d at p. 286, 279 Cal.Rptr. 592, 807 P.2d 434) and which were not (“[t]he remainder of the measure's provisions” (ibid.)).   Without elaboration, the court observed that “those portions of section 10 (amending § 190.2) which add new special circumstances” could constitutionally be applied only to crimes committed on or after June 6, 1990.  (Id. at pp. 298–299, 279 Cal.Rptr. 592, 807 P.2d 434.)   By contrast, the court noted that the proposition's amendment to subdivision (b) of section 190.2 could be applied to crimes committed before the measure's effective date because the provision simply codified the rule set forth in a previous Supreme Court opinion.  (Id. at pp. 301–302, 279 Cal.Rptr. 592, 807 P.2d 434.)   Despite these pronouncements, the court reiterated that in resolving the prospective/retrospective question, “We do not address any other issue concerning the applicability or validity of the measure's provisions.”  (Id. at p. 287, 279 Cal.Rptr. 592, 807 P.2d 434, fn. omitted.)

6.   No one can seriously dispute the observation in Taxpayers that voter intent is “incapable of proof.”   Imagine a trial with pollsters, media commentators, and political party operatives testifying about voter intent.   The result would probably be as definitive as all the speculation over Dewey's failure to receive enough votes to defeat Truman in 1948.

SILLS, Presiding Justice.

SONENSHINE and MOORE, JJ., concur.

Copied to clipboard