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holding "Assembly Bill 333 does not alter the scope or effect of section 190.2, subdivision"
Summary of this case from People v. LopezOpinion
F080361
06-29-2022
The PEOPLE, Plaintiff and Respondent, v. Fernando ROJAS, Defendant and Appellant.
Sharon Wrubel, Pacific Palisades, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I., II., IV., V, and VI. of the Discussion.
Sharon Wrubel, Pacific Palisades, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
POOCHIGIAN, ACTING P. J.
Defendant Fernando Rojas's fellow gang member shot and killed an individual with whom defendant had an altercation moments prior. Defendant was convicted of first degree murder with a gang special circumstance finding; and active gang participation.
The Attorney General concedes that, as a result of the passage of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), defendant's conviction for active gang participation and several enhancements must be reversed. We accept that concession. We reject defendant's remaining contentions, including a Batson / Wheeler claim and a challenge to his gang-murder special circumstance based on changes made to Penal Code section 186.22 by Assembly Bill 333. We hold that allowing Assembly Bill 333's changes to section 186.22 to affect section 190.2, subdivision (a)(22) would constitute an impermissible amendment of Proposition 21.
Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson ); People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler ).
All further statutory references are to the Penal Code unless otherwise stated.
We reverse the active gang participation conviction and several enhancements, but otherwise affirm.
BACKGROUND
In an amended information filed August 14, 2019, the Kern County District Attorney charged defendant Fernando Rojas with premeditated murder (count 1; §§ 187, subd. (a) & 189 ), active gang participation (count 2; § 186.22, subd. (a) ), and possession of a firearm as a felon (count 4; § 29800, subd. (a)(1).) The information further alleged: Defendant committed the murder for the benefit of, at the direction of, or in association with the Varrio Chico Lamont criminal street gang; firearm enhancements to the murder count under sections 12022, subdivision (d) and section 12022.53, subdivisions (d) and (e)(1) ; an out-on-bail enhancement ( § 12022.1 ); a prior juvenile adjudication strike ( § 667, subds. (c)–(j) & § 1170.12, subds. (a)–(e) ); and three prior prison term enhancements ( § 667.5, subd. (b).)
Codefendant Victor Nunez was also charged with counts 1 and 2, as well as possession of a firearm as a misdemeanant (count 3; § 29805.)
The court granted defendant's motion for acquittal on count 4. ( § 1118.1.) A jury convicted defendant on counts 1 and 2. The jury also found true the gang enhancement ( § 186.22, subd. (b)(1) ), gang-murder special circumstance ( § 190.2, subd. (a)(22) ), and firearm enhancements under sections 12022.53, subdivisions (d) & (e)(1) and 12022, subdivision (d) as to count 1.
The court granted a prosecution motion to dismiss the on-bail enhancement and prior conviction enhancements. The court found true the prior strike adjudication allegation.
The court sentenced defendant to life in prison without the possibility of parole on count 1, plus 25 years to life ( § 12022.53, subds. (d) & (e)(1) ), plus three years ( § 12022, subd. (d) ), plus a stayed ( § 654 ) term of six years on count 2. The court imposed various fines and fees, including a parole revocation restitution fine of $300. (See § 12022.45.) FACTS
Surveillance footage from an internet casino showed defendant arriving in a silver BMW at around 1:15 a.m. on February 3, 2018. Defendant entered the casino, whereafter he and Nunez conversed, drank beer, and played a casino game.
At around 2:04 a.m., a man named Brandon Ellington was outside the casino exchanging something with an individual whose car door was open. Ellington had something in his hand. A package of marijuana was later found in his pocket. An unidentified individual hit Ellington in the face.
Around the same time, defendant walked out with an unknown individual. Nunez was standing at the entrance. Defendant extended his left arm while holding what appeared to be a beer bottle. Ellington took off his shirt, squared off against defendant, and extended both of his arms over his head. Defendant threw the beer bottle. Ellington then left the view of the camera.
Defendant and Nunez jogged to their BMW toward the entrance of the casino. Defendant drove the BMW away from the casino with Nunez in the front passenger's seat. Defendant made a northbound turn onto South Union Avenue at about 2:08 a.m.
Surveillance footage from a nearby store showed a silver BMW pulling up near Ellington. The footage shows an individual exiting the passenger's side followed by muzzle flashes. Ellington ran toward a nearby market after being struck by a bullet. Eventually, Ellington collapsed. His body was later found by law enforcement at that location. The shooter then reentered the BMW which sped away.
Ellington had suffered a gunshot wound to his chest. The wound was lethal, striking Ellington's left lung, heart, and then right lung before exiting the body. The wound had "stippling" – which is partial gunpowder burns. However, the wound had no visible soot. Based on "rough generalizations," a pathologist testified that stippling without soot is consistent with the firearm being between six to 18 inches away from the victim when the lethal shot was fired. Ellington also had blunt force injuries.
Five spent nine-millimeter shell casings were found at the scene.
On February 9, 2018, an undercover officer arrested defendant at the same internet casino. The same day, officers located Nunez hiding behind a shipping container in a parking lot. Nunez tossed a black handgun away before surrendering. A criminalist from the regional crime laboratory testified that, in his opinion, it was the gun that fired the spent casings at the scene. The DNA profile on the gun matched Nunez.
Defendant denied involvement to law enforcement. He said he heard about the shooting from other people and from newspapers but was not personally involved. Defendant initially claimed he was not even at the internet casino on the night Ellington was killed. However, officers showed him a still photograph from the surveillance footage, and defendant admitted he was depicted therein. Defendant then admitted he was drunk. Defendant claimed Ellington had a knife, was saying things like, "I'll kill all you guys," and "white pride." However, defendant consistently denied involvement in the shooting. Defendant said he had "connections" and that everyone knew he was "from the streets." Defendant said people listen to him because he is a "big guy."
Officers asked defendant if he was involved in gangs in Lamont. Defendant claimed he was not currently active.
Deputy Sheriff Fernandez testified as a gang expert for the prosecution. Fernandez testified about a Kern County gang called Varrio Chico Lamont, including common tattoos among its members, their hand signs, primary activities, and predicate offenses. Varrio Chico Lamont is a subset of Lamont 13.
Defendant and Nunez were not involved in the predicate offenses.
Deputy Fernandez testified that "respect" is one of the primary things a member of the Varrio Chico Lamont gang seeks. If a perceived disrespect to a member of Varrio Chico Lamont went unanswered, the disrespected member would lose standing in the gang. Thus, disrespected members would be required to respond, usually with violence, to "save face."
Gang members also commit violent crimes like murder to enhance their reputation within the gang and the gang's reputation in the community. This reputation enhancement discourages people from "talk[ing]" to law enforcement, which allows the gang to continue committing crimes.
Another officer also testified about prior contacts with defendant suggesting his involvement with the Varrio Chico Lamont gang. Defendant had several tattoos that Deputy Fernandez believed were gang-related, including one that read, "VCL," two that read, "Lamont," and a street sign with the street names "Santa Clara" and "Kearney." Fernandez opined that defendant and Nunez were active members of the Varrio Chico Lamont gang on February 3, 2018. Fernandez also testified that a hypothetical crime aligned with the prosecutor's view of the evidence would be considered to have been committed "in association with" the Varrio Chico Lamont gang.
The area around the intersection of these two streets was a "stronghold" area for the gang.
DISCUSSION
See footnote *, ante .
III. Assembly Bill 333 Impermissibly Amends Proposition 21
A. Proposition 21
Voters approved Proposition 21 on March 7, 2000. In that initiative, the voters found that "[c]riminal street gangs and gang-related violence pose a significant threat to public safety and the health of many of our communities. Criminal street gangs have become more violent, bolder, and better organized in recent years." (Prop. 21, § 2(b).) The voters predicted that "[t]he problem of youth and gang violence will, without active intervention, increase...." (Ibid. )
Accordingly, voters concluded that "[g]ang-related felonies should result in severe penalties. Life without the possibility of parole or death should be available for murderers who kill as part of any gang-related activity." (Prop. 21, § 2(h), italics added.) To implement this goal, Proposition 21 made several statutory changes including the one at issue here: adding a new subdivision to section 190.2. That statute sets forth a list of special circumstances in which the punishment for first degree murder is set at death or life in prison without the possibility of parole (LWOP). (See § 190.2, subd.(a).) Proposition 21 added a new special circumstance to this list, which applies to murders where:
For most other first degree murders, there is a third possible sentence: 25 years to life in prison. (See § 190, subd. (a).)
"[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (Prop. 21, § 11 ; see § 190.2, subd. (a)(22).)
Proposition 21 provided that its provisions could not be amended by the Legislature except by a two-thirds vote of each house, or a statute that becomes effective only when approved by the voters. (Prop. 21, § 39.)
B. Assembly Bill 333
1. Changes to Subdivision (f)
Effective January 1, 2022, Assembly Bill 333 amended subdivision (f) of section 186.22 – the provision referenced in the special circumstance established by Proposition 21. (See Stats. 2021, ch. 699, §§ 1 – 5.) Before Assembly Bill 333, this provision defined a criminal street gang as: "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Former § 186.22, subd. (f).)
Assembly Bill 333 amended the definition of criminal street gang to read: "an ongoing, organized association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity." ( § 186.22, subd. (f) ; Stats. 2021, ch. 699, §§ 1 – 5.)
Under subdivision (f), one necessary aspect of a criminal street gang is that it has, as one of its primary activities" the commission of crimes listed in subdivision (e). Assembly Bill 333 amended subdivision (e)'s list of crimes, which in turn affects subdivision (f). (See Stats. 2021, ch. 699, §§ 1 – 5.)
2. Changes to Subdivision (e)
Prior to Assembly Bill 333, subdivision (e) defined the phrase "pattern of criminal gang activity" as: "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons...." (Former § 186.22, subd. (e).) Subdivision (e)(1) through (33) then listed several offenses, such as assault with a deadly weapon, robbery, and discharging a firearm from a motor vehicle. (Former § 186.22, subd. (e).)
After Assembly Bill 333's amendments, subdivision (e) now defines "pattern of criminal gang activity as: "the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more of the following offenses, provided at least one of these offenses occurred after the effective date of this chapter, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational...." ( § 186.22, subd. (e)(1).)
Assembly Bill 333 also precludes the use of the presently charged offense to establish the pattern of criminal gang activity. ( § 186.22, subd. (e)(2).)
Assembly Bill 333 also eliminated certain crimes from the list in subdivision (e), including looting, felony vandalism, and several crimes related to access cards, documents or identity theft ( §§ 484e, 484f, 484g, 530.5, 529.7 ; see § 186.22, subd. (e)(1)(A)–(Z).) As a result of Assembly Bill 333, these crimes cannot be used to establish a pattern of criminal gang activity. Additionally, looting and felony vandalism can no longer be used to establish the requisite "primary activities" of the group or association under subdivision (f).
Even before Assembly Bill 333, the crimes related to access cards, documents, identity theft could not be used to establish the requisite primary activities. (Former § 186.22, subd. (f).)
C. Effect of Changes Wrought by Assembly Bill 333
As detailed above, Assembly Bill 333 substantially narrowed subdivision (f)'s definition of criminal street gang in several important ways. After Assembly Bill 333's amendment, subdivision (f) now excludes from the definition of a criminal street gang those associations or groups whose members have individually – but not collectively – engaged in a pattern of criminal gang activity.
Assembly Bill 333 also narrowed subdivision (f)'s definition of a criminal street gang by substantially restricting the definition of a "pattern of criminal gang activity." Assembly Bill 333 imposed the new requirement that, to establish a pattern of criminal gang activity, the prior offenses must have commonly benefitted a gang, and the benefit must have been more than reputational. Additionally, the last of the offenses used to establish a pattern of criminal gang activity now must have occurred within three years prior to the commission of the current offense.
Moreover, Assembly Bill 333's amendment of subdivision (e) narrows subdivision (f)'s definition of a criminal street gang to now exclude those groups or associations whose primary activities include looting or felony vandalism, but do not include the crimes listed in current subdivision (e).
D. People's Initiative Power – Constitutional Limits on Legislative Power to Amend
The People's power of initiative is greater than the power of the Legislature. ( Rossi v. Brown (1995) 9 Cal.4th 688, 715, 38 Cal.Rptr.2d 363, 889 P.2d 557.) " ‘[U]nder article II, section 10, subdivision (c) [of the California Constitution], the voters have the power to decide whether or not the Legislature can amend or repeal initiative statutes." ( Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251, 48 Cal.Rptr.2d 12, 906 P.2d 1112.) The voters' power in this regard is "absolute." ( Ibid. ) " ‘[T]he purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to "protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent." [Citations.]’ [Citation.] In this vein, decisions frequently have asserted that courts have a duty to ‘ " ‘jealously guard’ " ’ the people's initiative power, and hence to ‘ " ‘apply a liberal construction to this power wherever it is challenged in order that the right’ " ’ to resort to the initiative process ‘ " ‘be not improperly annulled’ " ’ by a legislative body." ( People v. Kelly (2010) 47 Cal.4th 1008, 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186 ( Kelly ).)
Proposition 21 does not permit any legislative amendment except upon two-thirds passage of each house or enactments subject to voter approval. Assembly Bill 333 satisfies neither requirement. Thus, if Assembly Bill 333 amended Proposition 21 at all, it violates the Constitution.
A legislative enactment amends an initiative if it "prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.) A legislative enactment also amends an initiative "by taking away from it." ( Kelly, supra , 47 Cal.4th at pp. 1026–1027, 103 Cal.Rptr.3d 733, 222 P.3d 186 ; see also Proposition 103 Enforcement Project v. Charles Quackenbush (1998) 64 Cal.App.4th 1473, 1485, 76 Cal.Rptr.2d 342 ( Quackenbush ).) Consequently, a legislative enactment can be deemed an amendment to an initiative, even when it does not change the specific language enacted by the initiative itself. (See Kelly, supra , 47 Cal.4th at pp. 1014, 1030, 103 Cal.Rptr.3d 733, 222 P.3d 186 ; see also In re Oluwa (1989) 207 Cal.App.3d 439, 445, 255 Cal.Rptr. 35.) Any other rule would elevate form over substance and make it trivially easy to completely evade article II, section 10, subdivision (c) of the California Constitution – a provision we are charged with zealously guarding.
E. Analysis
1. Assembly Bill 333 Amends Proposition 21 by Taking Away from It
We conclude Assembly Bill 333 is an amendment of Proposition 21. 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 LWOP under section 190.2. Assembly Bill 333 would reduce the scope of murders punishable under section 190.2, subdivision (a)(22) in several ways, as the examples provided below demonstrate. In this way, Assembly Bill 333 "takes away" ( Quackenbush, supra , 64 Cal.App.4th at p. 1485, 76 Cal.Rptr.2d 342 ) from Proposition 21.
Under section 11 of Proposition 21, a defendant who intentionally killed the victim while an active member of a group whose members have individually, but not collectively, engaged in a pattern of criminal gang activity, would be subject to a sentence of death or LWOP under section 190.2, subdivision (a)(22). Not so under Assembly Bill 333.
Assuming the murder otherwise met the remaining requirements of section 190.2, subdivision (a)(22). This qualification applies to all the ensuing examples as well.
Under section 11 of Proposition 21, a defendant who intentionally killed the victim while an active member of a group that engages, or has engaged, in a pattern of criminal gang activity that benefitted the gang only in reputational ways, would be subject to a sentence of death or LWOP under section 190.2, subdivision (a)(22). Not so under Assembly Bill 333. Under section 11 of Proposition 21, a defendant who intentionally killed the victim while an active member of a group whose primary activities include looting and felony vandalism, but do not include the other crimes listed in section 186.22, subdivision (e) would be subject to a sentence of death or LWOP under section 190.2, subdivision (a)(22). Not so under Assembly Bill 333.
Under section 11 of Proposition 21, a defendant who intentionally killed the victim while an active member of a group that engaged in a pattern of criminal gang activity as evidenced by past crimes that met former subdivision (e)'s requirements but not the new requirement that the last offense have occurred "within three years of the date the current offense is alleged to have been committed," would be subject to a sentence of death or LWOP under section 190.2, subdivision (a)(22). Not so under Assembly Bill 333.
Because Assembly Bill 333 "takes away" from the scope of conduct that Proposition 21 made punishable under section 190.2, it is an amendment. While the Legislature was free to amend Proposition 21 in this fashion, it could only do so with a two-thirds vote in each house. (Prop. 21, § 39.) Assembly Bill 333 did not comply with that requirement and therefore cannot amend Proposition 21.
2. Punishment of a Crime is not Distinct from the Definition of the Crime Being Penalized
With commendable candor, the Attorney General states there are counterarguments to these conclusions. However, we, like the Attorney General, find them unpersuasive.
The Attorney General would distinguish Gooden on different grounds than we do. The Attorney General notes that while Proposition 7 increased the punishment for an existing crime; Proposition 21 created a special circumstance where none had existed before. And the relevant provisions of Proposition 7 did not incorporate by reference the provisions altered by Senate Bill 1437; whereas section 190.2, subdivision (a)(22) incorporates by reference a provision altered by Assembly Bill 333 (§ 186.22, subd. (f).) However, these formalistic distinctions do not go to the heart of the issue.
The Attorney General cites People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 255 Cal.Rptr.3d 239 ( Gooden ), which dealt with a similar issue involving Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) and Proposition 7. Among other things, Proposition 7 increased the punishment for first degree murder. Proposition 7 did not authorize the Legislature to amend or repeal its provisions without voter approval. The Legislature subsequently passed Senate Bill 1437, which narrowed the universe of conduct constituting first degree murder. Gooden held Senate Bill 1437 did not amend Proposition 7.
Gooden held that provisions establishing the punishment of a crime concern a subject "distinct" from those addressed by provisions defining the crime. This conclusion is misguided.
Punishment is a period of confinement, fine, etc. imposed for engaging in criminal conduct. ( Gooden, supra , 42 Cal.App.5th at p. 281, 255 Cal.Rptr.3d 239, quoting People v. Ruiz (2018) 4 Cal.5th 1100, 1107, 232 Cal.Rptr.3d 714, 417 P.3d 191.) In other words, punishment is the consequential relationship between a criminal penalty and the conduct on which it is being imposed.
Because both the penalty and its application to specific, real-world conduct are essential components, punishment is more than specifying a particular number of years in prison or the dollar amount of a fine. A statute would be nonsensical and meaningless if it only enumerated a penalty in the abstract, without identifying the crime to which it applies. Identifying the scope of conduct being penalized is as crucial to punishment as identifying the severity of the penalty.
The connection between conduct and consequence is the very core of the policy choice embodied in a punishment provision. Changing the scope of conduct to which particular penalties are attached "amends" that policy choice, for better or worse.
For these reasons, punishment and the scope of conduct being penalized (i.e., the elements of the crime) are not distinct issues. Not because they are "synonymous" ( Gooden, supra , 42 Cal.App.5th at p. 281, 255 Cal.Rptr.3d 239 ), but because the latter is an integral, constituent part of the former. They are not just related, they are definitionally and conceptually inseparable. They are not distinct.
The dissent acknowledges that, in enacting Proposition 21, the voters undoubtedly intended to increase the punishment for certain gang-related murders. (Conc. & dis. opn., post, at pp. –––– – ––––.) However, the dissent asserts the increased punishment intended by the voters "survives" Assembly Bill 333. (Ibid. ) But that simply is not true for the certain gang murders described above in part III.E.1. of the Discussion, ante , which are no longer subject to section 190.2 by virtue of Assembly Bill 333.
Since punishment is the application of a criminal penalty to a particular universe of conduct, narrowing that universe effects a change in punishment with respect to the newly excluded conduct. This is true even when the penalty attached to the remaining conduct remains unchanged.
A hypothetical helps illustrate. Imagine a jurisdiction where the only crime relating to driving under the influence was defined as "operating a motor vehicle with a blood-alcohol content of over 0.08" and carried a punishment of six months in jail. And suppose the voters, apparently angered by deaths and injuries caused by all drunk drivers, passed an initiative increasing punishment for that crime to one year in jail. Further suppose the Legislature subsequently narrowed the definition of the crime by raising the threshold blood-alcohol content to 0.15 percent and above. One might say such an amendment merely changed an element of the crime and did not affect punishment. But this formalistic distinction would prove illusory because the amendment to the elements of the crime would have the direct and intentional effect of eliminating punishment for certain conduct – e.g., operating a motor vehicle with a blood-alcohol content of 0.09 to 0.14 percent. This exposes the truth that a legislative change to the elements of a crime does affect the punishment established by the voters.
Fortunately, the framework set forth in Pearson and other cases cuts through the formalism of this false distinction by asking a question that goes directly to the heart of the issue: Does the legislative enactment prohibit what the initiative authorizes, or authorize what the initiative prohibits? In the hypothetical above, it is clear the voter initiative authorized a one-year jail sentence for, among others, drivers with blood-alcohol content of 0.09 to 0.14 percent, whereas the legislative enactment prohibited it. Similarly, as summarized above, section 11 of Proposition 21 authorized death or LWOP sentences for certain murderers under section 190.2, which Assembly Bill 333 would undo with respect to a certain subset of those murderers.
The contrary view seems to arise from the premise that, when enacting a punishment provision, voters are concerned with tying increased penal consequences to a particular label rather than to specific conduct. For example, that when voters increased the punishment for murder, their intent was to increase punishment for whatever conduct that might be labeled as murder in the future, rather than the real-world conduct encompassed by the definition of murder at the time of enactment. (See, e.g., People v. Nash (2020) 52 Cal.App.5th 1041, 1061–1063, 267 Cal.Rptr.3d 148 [rejecting argument that Proposition 7's reference to "murder" incorporated "the substantive offense of murder as it stood in 1978"]; Gooden, supra , 42 Cal.App.5th at pp. 282–284, 255 Cal.Rptr.3d 239.) To articulate this premise fully is to see that it is untrue. Just imagine a jurisdiction where voters passed an initiative to increase the punishment for robbery from two years in prison to four years, and then the Legislature then swapped the definitions of robbery and burglary. Common sense tells us voters who seek to increase punishment intend that it will be imposed on the conduct encompassed by the definition of the crime at the time of enactment.
F. Conclusion
Because Assembly Bill 333 takes away from section 11 of Proposition 21, it is unconstitutional to the extent it would amend that initiative. (See Cal. Const., art. II, § 10 (c).) The appropriate remedy is not to void Assembly Bill 333 in its entirety, but rather to disallow this unconstitutional application of Assembly Bill 333. (See Kelly, supra , 47 Cal.4th at p. 1048, 103 Cal.Rptr.3d 733, 222 P.3d 186.) Consequently, we hold that Assembly Bill 333 does not alter the scope or effect of section 190.2, subdivision (a)(22). In the following section, we will analyze defendant's claims as to the murder special circumstance without regard to statutory changes made by Assembly Bill 333.
See footnote *, ante .
DISPOSITION
Defendant's conviction for active gang participation ( § 186.22, subd. (a) ), the gang enhancement (id. , at subd. (b)(1) and the vicarious firearm enhancement ( § 12022.53, subds. (d) & (e)(1) are reversed. The matter is remanded for a possible retrial. In either event, defendant shall eventually be resentenced.
In all other respects, the judgment is affirmed.
I CONCUR:
DETJEN, J.
SNAUFFER, J., Concurring and Dissenting.
I concur with the majority in regard to the issues presented in sections I, II, IV, V, and VI of the opinion. However, I respectfully dissent only in regard to section III, and would vacate the special circumstance finding as a consequence of Assembly Bill No. 333, as explained below.
Proposition 21, a voter initiative, added the gang-related murder special circumstance to the Penal Code. The special circumstance sets the penalty for first degree murder at "death or imprisonment in the state prison for life without the possibility of parole" if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." ( § 190.2, subdivision (a)(22).)
All statutory references are to the Penal Code.
Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1 - 5 ) (AB 333), as relevant, amends the section 186.22, subdivision (f) "criminal street gang" definition. The majority concludes this amendment is unconstitutional as applied to the gang-related murder special circumstance because it impermissibly amends a voter initiative." ( Maj. opn. ante , at p. ––––; see People v. Cooper (2002) 27 Cal.4th 38, 44, 115 Cal.Rptr.2d 219, 37 P.3d 403 ( Cooper ) [limits on amending initiative enactments].) For the following reasons, I would conclude AB 333 is not an unconstitutional amendment.
Our Supreme Court has "described an amendment as ‘a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.’ [Citation.] But this does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative's provisions, is necessarily an amendment for these purposes. ‘The Legislature remains free to address a " ‘related but distinct area’ " [citations] or a matter that an initiative measure "does not specifically authorize or prohibit." ’ [Citations.] In deciding whether" AB 333 amends Proposition [21] "we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858 ( Pearson ).)
"In resolving the question, we must decide what the voters contemplated. ‘[T]he voters should get what they enacted, not more and not less.’ [Citation.] [¶] This is a question of statutory interpretation. When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure. " ( Pearson, supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)
" Section 190.2 [, subd.] (a)(22) was enacted as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, an initiative measure adopted by the electorate at the March 2000 primary election." ( People v. Shabazz (2006) 38 Cal.4th 55, 65, 40 Cal.Rptr.3d 750, 130 P.3d 519 ( Shabazz ).) Because this section itself remains intact, it sheds no light on the issue and we must look beyond it to divine voter intent.
Section 190.2, subdivision (a)(22), states in full: "The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang."
As pertinent, Proposition 21's "findings and declarations ... announced: ‘Gang-related crimes pose a unique threat to the public because of gang members' organization and solidarity. Gang-related felonies should result in severe penalties. Life without the possibility of parole or death should be available to murderers who kill as part of any gang-related activity. ’ " ( Shabazz, supra , 38 Cal.4th at p. 65, 40 Cal.Rptr.3d 750, 130 P.3d 519.) "The legislative analysis of Proposition 21 contained a summary chart of the gang provisions, and stated that [it] ‘[i]ncreases penalties for gang-related crimes ....’ " ( Robert L. v. Superior Court (2003) 30 Cal.4th 894, 906, 135 Cal.Rptr.2d 30, 69 P.3d 951.)
In my view, "the voters who approved Proposition [21] ... got, and still have, precisely what they enacted—stronger sentences for persons convicted of [gang-related special circumstance] murder .... By enacting [AB 333], the Legislature has neither undermined [this] initiative[ ] nor impinged upon the will of the voters who passed" it. ( People v. Superior Court (Gooden ) 42 Cal.App.5th 270, 289, 255 Cal.Rptr.3d 239 ( Gooden ); accord People v. Nash (2020) 52 Cal.App.5th 1041, 1058-1061, 267 Cal.Rptr.3d 148 ( Nash ).)
The majority attempts to distinguish Gooden, supra , from Proposition 21 by stating Gooden "is misguided" in separating crime and punishment. The majority claims separating crime and punishment in this situation is incorrectly "premise[d]" on the view "that, when enacting a punishment provision, voters are concerned with tying increased penal consequences to a particular label rather than to specific conduct." (Maj. opn. ante , at p. ––––.) The majority concludes "common sense tells us voters who seek to increase punishment intend that it will be imposed for the conduct encompassed by the definition of the crime at the time of enactment." (Ibid. ) But "[t]he definition of a crime is distinct from the punishment for a crime." ( People v. Solis (2020) 46 Cal.App.5th 762, 779, 259 Cal.Rptr.3d 854.) A special circumstance allegation is a penalty provision. It "is not a complete offense in itself. It is ‘separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged.’ " ( People v. Anderson (2009) 47 Cal.4th 92, 115, 97 Cal.Rptr.3d 77, 211 P.3d 584 ; see People v. Jones (2009) 47 Cal.4th 566, 576, 98 Cal.Rptr.3d 546, 213 P.3d 997 [describing penalty provisions].) As relevant here, the electorate prescribed an alternate punishment for some gang-related murders but did not otherwise establish a new crime.
On this point, In re Oluwa (1989) 207 Cal.App.3d 439, 255 Cal.Rptr. 35 (Oluwa ) is instructive. There, the electorate passed Proposition 7, an initiative which included a limitation for convicted murderers earning postsentence custody credits. To achieve the limit, the electorate rewrote the section delineating punishment for murder (§ 190 ) by including in it a reference to " ‘Article 2.5’ " credits. (Oluwa, supra , at p. 442, 255 Cal.Rptr. 35.)
"At the time of the enactment of Proposition 7, article 2.5 contained only sections 2930, 2931 and 2932. These sections outlined the manner in which prisoners might reduce their sentences by a maximum one-third for good behavior and participation in prison programs." (Oluwa, supra , 207 Cal.App.3d at p. 442, 255 Cal.Rptr. 35.)
The legislative analysis accompanying the initiative specifically explained a convicted second degree murderer " ‘would have to serve at least 10 years before becoming eligible for parole.’ " (Oluwa, supra , 207 Cal.App.3d at pp. 442-443, 255 Cal.Rptr. 35.) Later, the Legislature added sections 2933, 2934, and 2935 to Article 2.5. These sections created additional credit earning opportunities for convicted murderers. (Oluwa, supra , at p. 443, 255 Cal.Rptr. 35.)
When Oluwa, who began serving his sentence for murder in the interim, sought to benefit from the new statutes, the appellate court rejected his argument because it would contravene voter intent. The court explained, in part, the legislative analysis made clear the "electorate ... intended service of 10 calendar years by a second degree murderer before parole consideration." (Oluwa, supra , 207 Cal.App.3d at p. 445, 255 Cal.Rptr. 35 ; Cooper, supra , 27 Cal.4th at p. 45, 115 Cal.Rptr.2d 219, 37 P.3d 403 [Oluwa court relied on legislative analysis explanation to ascertain voter intent].).
In contrast, Proposition 21 contains no similar specific explanatory analysis. It focuses on punishment for gang-related murders. That focus endures.
Proposition 21 did enact other crimes provisions, for example sections 182.5 and 186.26.
The Proposition 21 electorate was undoubtedly concerned with increasing the punishment for certain gang-related murders. That increased punishment—life without parole or death—survives AB 333. Accordingly, I respectfully dissent from the majority's conclusion AB 333 does not apply to section 190.2, subdivision (a)(22). I would instead vacate the jury's special circumstance finding based on reasons identical to the People's concession to reverse all other gang-related findings. (Maj. opn., ante at p. ––––.)
By certain I mean only those gang-related murders in which the defendant killed while actively participating in a criminal street gang and were "carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) Such murders are a subset of all gang-related murders.
While potential jurors are not afforded the same confidentiality as seated jurors, we will be discussing in this opinion answers they provided on a questionnaire labeled "confidential" and therefore suppress both first and last names. It is important to note that the Attorney General agrees that all three individuals have "Hispanic surnames."
* See footnote, ante , page 1.
* See footnote, ante , page 1.
* See footnote, ante , page 1.