High Court to Decide if Prop. 115 Applies Retroactively : Initiative: State justices broaden review to determine if criminal-procedure reforms apply to cases pending when the law was approved.

The state Supreme Court on Wednesday widened its inquiry into Proposition 115, agreeing to decide whether the initiative’s broad criminal-procedure reforms may be applied to the hundreds of cases pending when it was approved by voters June 5.

Trial courts throughout the state have been widely divided over the issue--some reluctant to apply the measure’s procedural changes retroactively but others willing to do so.

Last month, the high court agreed to review claims by opponents that the measure violates a constitutional requirement that ballot measures be limited to a single subject and that it is so sweeping that it amounts to a revision of the Constitution--rather than an amendment--and thus may not be enacted by an initiative.

Wednesday’s action thus sets the stage for a two-step review by the justices: first, to determine whether the measure is constitutional; and second, if constitutional, whether and to what extent it may be applied to crimes that had occurred before its passage. A decision is expected this fall.

The court’s order was signed by Justices Edward A. Panelli, Stanley Mosk, Joyce L. Kennard and Armand Arabian--the minimum number required to grant review. As in the previous case, the court allowed the initiative to continue to be enforced while the legal issues are resolved.

Proposition 115, passed with a 57% majority vote, calls for a broad range of constitutional and statutory changes limiting defendants’ rights and seeking to reduce delay in criminal proceedings.

Among other things, the initiative restricts state constitutional guarantees for defendants to those mandated by the U.S. Supreme Court under the federal Constitution. It also allows police officers to present hearsay testimony at preliminary hearings; provides that judges, rather than attorneys, question prospective jurors; and requires attorneys to be ready for trial within strict time limits.

The high court, in a brief order, said Wednesday that it would hear the case of Robert Alan Tapia, who faces a death-penalty trial in Tulare County in the murder of a Three Rivers man in February, 1989.

Last month the trial judge, applying Proposition 115, said he would conduct the questioning of prospective jurors, hoping to reduce the length of a task he said would take up to six weeks if performed by the prosecution and defense attorneys.

Tulare Asst. Public Defender Tim Bazar appealed to the state Supreme Court, saying there was nothing in the initiative specifically allowing its application to pending cases and that such application would violate constitutional prohibitions against ex post facto laws.

Bazar hailed the justices’ action Wednesday and expressed confidence that the court would bar the initiative from being imposed retroactively. “Simple fair play requires that you don’t change the rules on a guy right before he goes to trial,” the defender said.

State Deputy Atty. Gen. Karen Ziskind expressed hope that the justices will promptly eliminate any doubts about the initiative’s application to pending cases. She said the state will urge that jury-questioning by judges and other clearly procedural reforms under Proposition 115 be permitted in all pending cases.

She noted that prosecutors have not and will not seek to apply in pending cases provisions of the measure that affect the punishment or definition of a crime--such as those that allow the death penalty for some accomplices in felony murders.