RAPHAEL J.

Certified for Partial Publication.

Jean Ballantine, Los Angeles, and Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant Larry Lee Fletcher.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Eric Anthony Taylor, Jr.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Amanda Lloyd, Adrian R. Contreras, and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAPHAEL J. Following a joint trial, defendants and appellants Larry Lee Fletcher and Eric Anthony Taylor, Jr. were convicted of several crimes stemming from a shooting outside of a convenience store. In the published portion of this opinion, we hold on an issue of first impression that Assembly Bill No. 333 (2021-2022 Reg. Session) (Assembly Bill 333) does not require reversing serious felony and strike priors premised on violations of Penal Code section 186.22. In the unpublished portion, we reject several of appellants' other challenges to their convictions and sentences, reverse on various counts and findings based on other new laws, and remand to the trial court for further proceedings.

I. BACKGROUND

In December 2020, Fletcher and Taylor were at a convenience store in Hemet and began talking to an unknown male (John Doe). They asked Doe where he was from, and then Taylor told Doe that people around here "have guns." Some moments later, Doe exited the store and got into a car. Fletcher approached Doe's car, and witnesses testified hearing gunshots near the car before Doe managed to drive away. Fletcher was seen holding a gun with his hand outstretched, jogging toward and firing gunshots at the car as it was pulling away. Taylor was seen firing at the car as well.

Fletcher and Taylor were charged with attempted murder ( §§ 664, 187, subd. (a) ; count 1) with personal and intentional discharge of a firearm ( §§ 12022.53, subd. (c), 1192.7, subd. (c)(8) ) and for the benefit of a criminal street gang ( § 186.22, subd. (b)(5) ), active participation in a criminal street gang ( § 186.22, subd. (a) (hereinafter § 186.22(a) ); count 2), unlawful possession of a firearm ( § 29800, subd. (a)(1) ; counts 3 (Taylor) and 4 (Fletcher)), assault with a semiautomatic firearm ( § 245, subd. (b) ; count 5) with personal use of a firearm ( §§ 12022.5, subd. (a), 1192.7, subd. (c)(8) ) and for the benefit of a criminal street gang ( § 186.22, subd. (b)(1)(A) ), and unlawful discharge of a firearm at an occupied motor vehicle ( § 246 ; count 6) with personal use of a firearm ( § 1192.7, subd. (c)(8) ) and for the benefit of a criminal street gang ( § 186.22, subd. (b)(4)(B) ). Additionally, Fletcher was alleged to have a prior serious felony conviction as well as a strike prior, and Taylor was alleged to have two prior serious felony convictions and two strike priors ( §§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c) ). At trial, the prosecution's gang expert testified that the convenience store was a place the gang Four Corner Hustler Crips was known to congregate. The expert stated that it is important to gang members that others know they have guns to instill fear, demand respect, and deter territorial encroachment. The expert opined that both Fletcher and Taylor were members of the Four Corner Hustler Crips gang.

The jury found appellants guilty on all charges and enhancements. The trial court then found the allegations on the prior convictions to be true. Given their strike priors, Fletcher was sentenced to 56 years and four months to life, and Taylor 100 years to life.

II. DISCUSSION

A. Assembly Bill 333

We begin by considering whether, and to what extent, appellants are entitled to relief under Assembly Bill 333, which narrowed the applicability of certain punishments for offenses involving a criminal street gang. Although we agree with the parties that Assembly Bill 333 requires us to reverse the conviction for active participation in a criminal street gang (count 2) and the gang enhancements (counts 1, 5, and 6), we hold that the new law does not apply to the findings on serious felony and strike priors.

1. Active Participation Count and Gang Enhancements

Section 186.22 makes it a crime to actively participate in a criminal street gang. ( § 186.22(a).) Section 186.22 also enhances the punishment for a person convicted of an enumerated felony committed "for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members." ( § 186.22, subd. (b)(1), (4).) Both the active participation crime and the gang enhancement turn on the definition of "criminal street gang."

Assembly Bill 333 narrowed what a "criminal street gang" means. What used to be defined in part as "any ongoing organization, association, or group of three or more persons ... whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity" (former § 186.22, subd. (f) ) is now defined in part as "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). The amended definition, as before, in turn depends on what a "pattern of criminal gang activity" means. Assembly Bill 333 also raised the bar for proving a "pattern of criminal gang activity" in various ways. For our purposes, the most relevant change is that the most recent predicate offense used to show a pattern must now be proven to have "occurred within three years of [a] prior offense and within three years of the date the current offense is alleged to have been committed." (Assem. Bill 333, § 3, revised § 186.22, subd. (e)(1).)

These changes to the law brought by Assembly Bill 333 apply retroactively to appellants as their judgments were not final when the amendments took effect. There is no dispute that this portion of Assembly Bill 333 is retroactive. (See People v. Lee (2022) 81 Cal.App.5th 232, 237, 296 Cal.Rptr.3d 499, review granted, Oct. 19, 2022, S275449.)

Appellants would also benefit from these changes. As the People observe, the only possible predicate offenses in the record occurred more than three years before the current offenses, in 2011 and 2015. Thus, there is no evidence of a "pattern of criminal activity," which is a necessary component of establishing a "criminal street gang." ( § 186.22, subds. (e)(1), (f).) If appellants are to be convicted today of violating section 186.22, the People must, in a new trial, introduce different evidence of offenses that would prove the pattern of criminal gang activity.

2. Serious Felony and Strike Priors

Appellants contend that Assembly Bill 333 also requires us to reverse the true findings on their serious felony and strike priors premised on violations of section 186.22, subsection (b) (hereinafter section 186.22(b) ). The People argue that no such reversal is warranted. We hold that, if Assembly Bill 333 applies to serious felony and strike priors premised on violations of section 186.22, it would constitute an improper legislative amendment of a ballot initiative.

Fletcher and Taylor were found to have committed one count of unlawful possession of a firearm ( § 29800, subd. (a)(1) ) in 2015 with the additional allegation that it was committed for the benefit of a criminal street gang ( § 186.22(b)(1) ). That gang enhancement made the unlawful possession charge a serious felony ( § 1192.7, subd. (c)(28) (hereinafter § 1192.7(c)(28) ); see People v. Briceno (2004) 34 Cal.4th 451, 20 Cal.Rptr.3d 418, 99 P.3d 1007 ( Briceno )) and therefore a strike as well at the time Fletcher and Taylor were sentenced ( §§ 667, subds. (c), (d)(1), 1170.12, subds. (a), (b)(1) ). They argue that, post-Assembly Bill 333, there can be no true finding unless the 2015 gang enhancements satisfy the newer, narrower requirements.

To explain why we disagree, we first describe in general terms Proposition 21, which added felonies committed for the benefit of a criminal street gang to the list of "serious" felonies, before focusing on specific features of that ballot initiative and a subsequent one, Proposition 36.

"At the March 7, 2000 Primary Election, the California electorate passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998," which "sought to tackle, in ‘dramatic’ fashion, the onerous problem of gang violence and gang crime." ( Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897, 906, 135 Cal.Rptr.2d 30, 69 P.3d 951 ( Robert L. ).) The legislative analysis of Proposition 21 stated that the initiative "[a]dds crimes to the serious and violent felony lists, thereby making offenders subject to longer prison sentences." (Ballot Pamp., Primary Elec. (Mar. 7, 2000) analysis of Prop. 21 by Legis. Analyst, summary chart, p. 47.) Among those added to the serious felony list was the one described in section 1192.7(c)(28) : "any felony offense, which would also constitute a felony violation of Section 186.22." (Ballot Pamp., supra , text of Prop. 21, § 17, p. 125.)

After Proposition 21 became law, some courts construed section 1192.7(c)(28) to apply to only the substantive offense of active participation in a criminal street gang under section 186.22(a) and not the gang enhancement under section 186.22(b). (See, e.g., Briceno, supra , 34 Cal.4th at pp. 457-458, 20 Cal.Rptr.3d 418, 99 P.3d 1007 [describing lower court's holding].) However, our Supreme Court has held that "the definition of ‘serious felony’ in section 1192.7(c)(28) also includes ‘any felony offense’ that was committed for the benefit of a criminal street gang within the meaning of section 186.22(b)(1)." ( Briceno, supra , 34 Cal.4th at p. 456, 20 Cal.Rptr.3d 418, 99 P.3d 1007.) Thus, although being a felon in possession of a firearm in violation of section 29800, subdivision (a)(1) is not inherently a serious felony, appellants committed serious felonies by violating the provision for the benefit of a criminal street gang.

One consequence of having previously been convicted of a serious felony is that it counts as a strike prior in a subsequent proceeding under the Three Strikes law. ( §§ 667, subd. (c), 1170.12, subd. (a) ; see People v. Henderson (2022) 14 Cal.5th 34, 43, 301 Cal.Rptr.3d 243, 520 P.3d 116 ["The Three Strikes law was ‘[e] nacted "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses" [citation], [and] "consists of two, nearly identical statutory schemes" ’ "].) The provisions defining a serious felony for purposes of the Three Strikes law are found in sections 667, subdivision (d)(1) and 1170.12, subdivision (b)(1), both of which in turn refer to section 1192.7, subdivision (c).

Crucially for our purposes, Proposition 21 locked in the definition of serious felonies as of the initiative's effective date. Section 14 of Proposition 21 added section 667.1, which stated that "for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." (Ballot Pamp., supra , text of Prop. 21, § 14, p. 123.) That definition encompasses section 667, subdivision (d)(1), and hence its reference to section 1192.7(c)(28). Similarly, section 16 of Proposition 21 added section 1170.125, which stated that "for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." (Ballot Pamp., supra , text of Prop. 21, § 16, p. 124.) Again, that definition encompasses section 1170.12, subdivision (b)(1) and hence its reference to section 1192.7(c)(28) as well. Both sections 667.1 and 1170.125 were later amended in 2012 by Proposition 36, also known as the Three Strikes Reform Act of 2012, such that the definitions of serious felonies are now locked as of November 7, 2012. (See §§ 667.1, 1170.125 ; Ballot Pamp., General Elec. (Nov. 6, 2012) text of Prop. 36, §§ 3, 5, pp. 107, 109.)

Because the definition of a serious felony for purposes of the Three Strikes law is what constituted a serious felony in 2012, Assembly Bill 333 can only apply if it satisfies Proposition 36's amendment requirements. The last section of Proposition 36 states that, subject to exceptions not applicable here, "[t]he provisions of this act shall not be altered or amended except by" either a statute passed by the Legislature with a two-thirds majority in each house (and subsequently agreed to by the Governor or placed on the next general ballot and approved by a majority of voters) or a statute that becomes effective when approved by a majority of voters. (Ballot Pamp., supra , text of Prop. 36, § 11, p. 110.) Assembly Bill 333 was neither a statute that became effective upon voter approval nor a bill that passed with a two-thirds majority. The result is that Assembly Bill 333 does not alter the definition of a serious felony or strike prior; to the extent it can be construed to do so, it runs afoul of constitutional requirements regarding legislative amendment of ballot initiatives. The current split in the Court of Appeal on whether Assembly Bill 333 unconstitutionally amends a different provision supports our rationale here. In People v. Rojas (2022) 80 Cal.App.5th 542, 557-558, 296 Cal.Rptr.3d 104 ( Rojas ), review granted, Oct. 19, 2022, S275835, the court held that Assembly Bill 333 improperly amended Proposition 21 as applied to the gang-murder special circumstance in section 190.2, subdivision (a)(22). As Rojas stated: " Section 11 of Proposition 21 essentially provided that a certain subset of murders (i.e., gang murders) would be subject to the death penalty or [life without the possibility of parole] under section 190.2. Assembly Bill 333 would reduce the scope of murders punishable under section 190.2, subdivision (a)(22) in several ways .... In this way, Assembly Bill 333 ‘takes away’ [citation] from Proposition 21" and is therefore "unconstitutional to the extent it would amend that initiative." ( Rojas, supra , at pp. 554, 557, 296 Cal.Rptr.3d 104.) But in another case that was decided days earlier, People v. Lee (2022) 81 Cal.App.5th 232, 245, 296 Cal.Rptr.3d 499, review granted, Oct. 15, 2022, S275449 ( Lee ), a different district reached a contrary conclusion. Importantly, it did so by noting that the section of Proposition 21 relevant there lacked the exact lock-in provisions we have discussed above. As Lee explained: "In enacting Proposition 21, the electorate clearly knew how to express the intent to freeze a statutory definition. In sections dedicated to amending portions of the ‘Three Strikes’ law, Proposition 21 changed the ‘ "lock-in" date for determining the existence of qualifying offenses (such as violent or serious felonies)’ under the ‘Three Strikes’ law.... Given the express time-specific incorporations in [ sections] 14 and 16 of Proposition 21, we may safely assume that had the voters also intended section 11 of Proposition 21 [amending the list of special circumstance murders] to make a time-specific incorporation of section 186.22 ...., they would ‘have said so in readily understood terms.’ ... But there is no such language." ( Lee, supra , at pp. 242-243, 296 Cal.Rptr.3d 499.) We need not take a view on the application of Assembly Bill 333 to the gang-murder special circumstance here; rather, we simply note that Lee found no unconstitutional amendment due in part to the absence of something our case undoubtedly has. (See also People v. Lopez (2022) 82 Cal.App.5th 1, 17-25, 297 Cal.Rptr.3d 634 [applying Lee to hold that Assembly Bill 333 did not unconstitutionally amend Proposition 21 in context of gang conspiracy statute].) Although the issue before us is formally whether Assembly Bill 333 unconstitutionally amends Proposition 36, not Proposition 21, Lee 's discussion of Proposition 21 applies with equal force here.

Accordingly, we conclude that Assembly Bill 333 does not require us to vacate the true findings on appellants' serious felony and prior strike convictions. However, we reverse the active gang participation count and the gang enhancements and remand to give the prosecution an opportunity to retry them under the new standards. B. Other Contentions

III. DISPOSITION

Defendants' convictions on count 2 and the gang enhancements on counts 1, 5, and 6 are reversed, and their sentences are vacated. The matter is remanded for the trial court to (1) provide the prosecution an opportunity to retry the active gang participation offense and gang enhancements under the law as amended by Assembly Bill 333; (2) provide the prosecution an opportunity to seek upper term sentences under the law as amended by Senate Bill 567; and (3) after any retrial, or on remand if the prosecution elects not to conduct a trial, resentence defendants. The judgment is otherwise affirmed.

We concur:

MILLER Acting P. J.

SLOUGH J.