Summary
In Lee, supra, 81 Cal.App.5th 232, 296 Cal.Rptr.3d 499, Division Four of the Second District concluded Assembly Bill 333 did not unconstitutionally amend section 190.2, subdivision (a)(22).
Summary of this case from People v. CampbellOpinion
B300756, B305493
06-24-2022
The PEOPLE, Plaintiff and Respondent, v. Derion Davon LEE et al., Defendants and Appellants.
John Steinberg, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant Derion Davon Lee. Dwyer + Kim, John P. Dwyer ; Spolin Law and Aaron Spolin, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Pernell Barnes. Leslie Conrad, Pacific Palisades, under appointment by the Court of Appeal, for Defendant and Appellant Charod Robinson. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
The opinion in the above-entitled matter filed on June 24, 2022, was not certified for publication in the Official Reports. Good cause appearing, it is ordered that the opinion in the above entitled matter be partially published in the official reports. Portions to be published include pages 1-3, up to footnote 2, G.II, Assembly Bill No. 333, subdivisions a. and b., and the DISPOSITION.
See footnote *, ante .
John Steinberg, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant Derion Davon Lee.
Dwyer + Kim, John P. Dwyer ; Spolin Law and Aaron Spolin, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Pernell Barnes.
Leslie Conrad, Pacific Palisades, under appointment by the Court of Appeal, for Defendant and Appellant Charod Robinson.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J. Appellants Derion Devon Lee, Charod Robinson, and Pernell Barnes, members of the Duarte Duroc Crips gang (DDC), were convicted of various charges arising from two shootings that occurred as part of a war between DDC and a rival gang, the Pasadena Denver Lane Bloods (PDL). The first shooting (the Douglas shooting) occurred on December 22, 2016, at the Kings Villages apartment complex in Pasadena, a known PDL hangout, and resulted in the killing of Brandon Douglas, a PDL associate. The second shooting (the Vigil shooting) occurred on January 6, 2017, during a candlelight vigil held for Douglas at Kings Villages. Ormoni Duncan and Antoine Sutphen were killed, and Janell Lipkin and Shamark Wright were wounded. Just hours before the Vigil shooting, someone had opened fire on a residence in DDC's territory in Duarte (the Duarte shooting).
Appellants were tried along with two codefendants, Isaiah Daniels and Andrew Vasquez, also members of DDC. Appellant Lee was the only person charged in connection with both the Douglas and Vigil shootings. The others were charged only with crimes arising out of the Vigil shooting.
As to the Vigil shooting, the jury convicted appellants Lee, Robinson, and Barnes of one count of conspiracy to commit murder ( Pen. Code, § 182, subd. (a)(1) ; count 1); two counts of first degree murder (§ 187, subd. (a); counts 2-3) for the killings of Sutphen and Duncan; two counts of attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a); counts 4, 9) for the wounding of Lipkin and Wright; and shooting at an inhabited dwelling (§ 246; count 5). As to the Douglas shooting, the jury convicted appellant Lee of an additional count of first degree murder (§ 187, subd. (a); count 6) for the killing of Douglas. Further, on all counts as to all appellants, the jury found true special circumstance allegations (§ 190.2, subds. (a)(3) [multiple murder], (a)(21) [drive-by murder], (a)(22) [gang murder]) on counts 2, 3, and 6, as well as gang allegations (§ 186.22, subd. (b)(1)(C)) and gang-related firearm allegations (§ 12022.53, subds. (b)-(d)/(e)(1)).
Unspecified references to statutes are to the Penal Code.
As to appellant Lee, the verdict form on count 6 (first degree murder of Douglas) omitted the drive-by murder special circumstance under subdivision (a)(21) of section 190.2. As to all three appellants, the verdict forms on count 5 (shooting at an inhabited dwelling) listed one firearm enhancement under subdivision (d)/(e)(1) of section 12022.53, which the jury found true.
Defendant Daniels was also charged with and convicted of counts 1 through 5, and 9. Defendant Vasquez was acquitted of all charges.
See footnote *, ante .
See footnote *, ante .
DISCUSSION
See footnote *, ante .
G. Sentencing Issues
Appellants Lee, Robinson, and Barnes raise several contentions with respect to their sentences. Appellant Lee was sentenced separately from appellants Robinson and Barnes. We summarize the relevant sentencing proceedings as to each appellant before addressing their contentions.
See footnote *, ante .
II. Assembly Bill No. 333
On appeal, appellants Lee and Robinson asked for leave to file supplemental briefing regarding the impact of newly enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (A.B. 333). (See Stats. 2021, ch. 699, §§ 1-5.) A.B. 333 expressed concern that former section 186.22 sometimes applied to "social networks of residents in neighborhoods" who were "often mischaracterized as gangs despite their lack of basic organizational requirements." (Stats. 2021, ch. 699, § 2, subd. (d)(8); see id. , § 2, subd. (d)(7) ["People frequently receive gang enhancements based on the conduct of other people whom they have never even met"].) To address this concern, A.B. 333 amended section 186.22 to require proof of additional elements to establish a gang enhancement. A.B. 333 also added section 1109 to the Penal Code, which provides that "[i]f requested by the defense, a case in which a gang enhancement is charged under subdivision (b) or (d) of Section 186.22 shall be tried in separate phases." ( § 1109, subd. (a).) We granted appellants’ requests, received briefing from the parties, and now consider the arguments as to all three appellants. a. Sections 186.22 and 12022.52
Appellants contend, and the Attorney General agrees, that the amendments to section 186.22 should be applied retroactively to the gang enhancement and gang-related firearm enhancements (§§ 186.22, 12022.53, subds. (b)-(d)/(e)(1)) in this case, and that under the new law, there is insufficient evidence to support imposition of those enhancements. They ask that we strike the true findings on these allegations and remand the matter to afford the prosecution the opportunity to retry the allegations.
We agree that the amendments to section 186.22 apply retroactively in this case. Section 186.22 provides for an enhanced punishment when the defendant is 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).) A.B. 333's amendments to section 186.22 apply retroactively to cases like the one here, in which the judgments of conviction have not become final prior to the effective date of A.B. 333. (See People v. Lopez (2021) 73 Cal.App.5th 327, 343–344, 288 Cal.Rptr.3d 463 ( Lopez ); People v. E.H. (2022) 75 Cal.App.5th 467, 478, 290 Cal.Rptr.3d 506 ( E.H. ); People v. Figueroa (1993) 20 Cal.App.4th 65, 68, 70–71, 24 Cal.Rptr.2d 368.)
We also agree that the amendments require the reversal of the gang enhancements under section 186.22; the gang-related firearm enhancements under section 12022.53, subdivisions (d)/(e)(1), (c)/(e)(1), and (b)/(e)(1); and, despite the Attorney General's argument raised by supplemental brief (which we discuss in the next section below), the gang-murder special circumstance findings under section 190.2, subdivision (a)(22). Prior to the amendments made by A.B. 333, a "criminal street gang" was defined 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 [enumerated criminal acts], 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), italics added.) A " ‘pattern of criminal gang activity’ " was defined as "the commission of ... two or more of [the enumerated] 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).)
Consistent with former section 186.22, the court instructed the jury in this case on the gang enhancement, and informed the jury that "[t]he crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related." (See CALCRIM No. 1401.)
While this appeal was pending, A.B. 333, which became effective January 1, 2022, modified the definition of a "criminal street gang" to "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 [enumerated criminal acts], 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." (Current § 186.22, subd. (f), italics added.) A.B. 333 also redefined " ‘pattern of criminal gang activity’ " to mean "the commission of ... two or more [enumerated criminal acts], 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 from the offenses is more than reputational ." (Current § 186.22, subd. (e)(1), italics added.)
"Thus, pursuant to the new legislation, imposition of a gang enhancement [now] requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have ‘commonly benefited a criminal street gang’ where the ‘common benefit ... is more than reputational’; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense." ( Lopez , supra , 73 Cal.App.5th at p. 345, 288 Cal.Rptr.3d 463, quoting § 186.22, subds. (e)(1)-(2).) The statute also sets forth examples "of a common benefit that are more than reputational," which include "financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (§ 186.22, subd. (g).) We must vacate the jury's true findings on the gang enhancement (§ 186.22, subd. (b)(1)(C)), gang-related firearm enhancements (§ 12022.53, subds. (d)/(e)(1), (c)/(e)(1), (b)/(e)(1)), and gang-murder special circumstance (§ 190.2, subd. (a)(22)), as the absence of the new elements under the gang statute is not harmless under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 ( Chapman ). Under Chapman, "the absence of instruction on the amended version of section 186.22 requires reversal unless ‘it appears beyond a reasonable doubt that the error did not contribute the th[e] jury's verdict.’ ( People v. Flood (1998) 18 Cal.4th 470, 504 [76 Cal.Rptr.2d 180, 957 P.2d 869].)" ( E.H. , supra , 75 Cal.App.5th at p. 479, 290 Cal.Rptr.3d 506 ; People v. Sek (2022) 74 Cal.App.5th 657, 668–670, 289 Cal.Rptr.3d 792 ; see People v. Merritt (2017) 2 Cal.5th 819, 826–831, 216 Cal.Rptr.3d 265, 392 P.3d 421 [instructional error involving the omission of multiple elements subject to harmless error review].)
Here, to prove DDC was a criminal street gang under former section 186.22, the prosecution submitted evidence that two known DDC gang members (La'Shaun Morgan and Shawn Lyndolph) were each convicted of felon in possession of a firearm (§ 29800, subd. (a)(1)) in 2013 and 2016. Consistent with current section 186.22, however, the prosecution did not introduce evidence that those predicate offenses commonly benefited DDC, or that the common benefit of either crime was more than reputational. Nor was the jury was instructed to determine this additional element under section 186.22; it instead was instructed that it need not find either predicate offense gang-related. Thus, on this record, we cannot conclude beyond a reasonable doubt that the omission of the new elements in section 186.22 did not contribute to the jury's verdict. The true findings under section 186.22 must be vacated, and the matter remanded to give the People the opportunity to prove the applicability of the enhancements under the amended law. ( Lopez , supra , 73 Cal.App.5th at p. 346, 288 Cal.Rptr.3d 463 ; accord, E.H. , supra , 75 Cal.App.5th at p. 480, 290 Cal.Rptr.3d 506.) The changes wrought by A.B. 333 also require that we vacate the firearm enhancement and gang-murder special circumstance findings in this case (§§ 12022.53, subds. (b)-(d)/(e)(1), 190.2, subd. (a)(22)). Every true finding on the firearm enhancement allegations that the jury made was based on subdivision (e)(1) of section 12022.53, which provides that the court may impose additional sentences listed in subdivisions (b) through (d) if two conditions are found to be true: (1) the defendant was a principal in the underlying crime and violated section 186.22, subdivision (b); and (2) any principal in the offense committed any act listed in subdivisions (b) through (d) in section 12022.53. Section 190.2, subdivision (a)(22) requires proof beyond a reasonable doubt that 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." The express reliance by both the firearm enhancement statutes and gang-murder special circumstance statutes on the definition of a criminal street gang in section 186.22 means that appellants are entitled to the benefit of this change in the law as to every special circumstance and sentence enhancement finding under sections 12022.53, subdivisions (b)/(e)(1), (c)/(e)(1), and (d)/(e)(1), and 190.2, subdivision (a)(22). ( Lopez , supra , 73 Cal.App.5th at pp. 347, 288 Cal.Rptr.3d 463.)
b. Section 190.2, subdivision (a)(22)
The Attorney General contends that while AB 333's amendments apply retroactively to the gang and gang-related firearm enhancement findings (§§ 186.22, 12022.53), those amendments do not apply to the gang-murder special circumstance findings (§ 190.2, subd. (a)(22)). We disagree.
The Attorney General's contention runs as follows. The gang-murder special circumstance, section 190.2, subdivision (a)(22), was enacted by the voters as section 11 of Proposition 21 on the March 7, 2000 ballot. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897, 135 Cal.Rptr.2d 30, 69 P.3d 951.) Under the California Constitution, an initiative statute can be amended "only when approved by the electors unless the initiative statute permits amendment or repeal without [the electors’] approval." ( Cal. Const., art. II, § 10, subd. (c); accord, People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 568, 107 Cal.Rptr.3d 265, 227 P.3d 858 ( Pearson ); People v. Kelly (2010) 47 Cal.4th 1008, 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186.) Proposition 21 does not permit amendment except by the electors’ approval or by legislative amendment passed by two-thirds vote in each house. (Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 39, p. 131 ["[t]he provisions of this measure shall not be amended by the Legislature except by a statute passed in each house by ... two-thirds of the membership of each house concurring, or by a statute that becomes effective only when approved by the voters"].) A.B. 333 was enacted without voter approval, and without the requisite two-thirds votes in both houses of the Legislature. (See Sen. Daily J. (2021-2022 Reg. Sess.) p. 2284; Assem. Daily J. (2021-2022 Reg. Sess.) p. 2927.) Accordingly, the Attorney General asserts that the Legislature lacked the power to unilaterally repeal or amend provisions of the initiative through A.B. 333.
According to the Attorney General, insofar as AB 333 seeks to redefine the definition of a "criminal street gang" in the voter-enacted gang-murder special circumstance, it runs afoul of the constitutional prohibition on legislative amendment of a statute adopted by initiative. The Attorney General relies on a general principle of statutory construction: " ‘where a statute adopts by specific reference the provisions of another statute ... such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified.’ " ( Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58–59, 195 P.2d 1 ; see In re Oluwa (1989) 207 Cal.App.3d 439, 445, 255 Cal.Rptr. 35.) As enacted by section 11 of Proposition 21, the gang-murder special circumstance (§ 190.2, subd. (a)(22)) applies to any intentional killing committed by the defendant, if at the time he or she "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." (Ballot Pamp., supra , text of Prop. 21, § 11, p. 122, italics added.) The Attorney General contends that the italicized reference to section 186.22, subdivision (f) reflects an intent to incorporate that provision in the form in which it existed at the time Proposition 21 was adopted, and not as the provision might subsequently be modified. Thus, according to the Attorney General, AB 333's amendments to section 186.22, subdivision (f), which changed the definition of a criminal street gang, cannot constitutionally be applied to amend section 11 of Proposition 21.
However, the rule of statutory construction on which the Attorney General relies is not to be mechanically applied. (See In re Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10, 25 Cal.Rptr.2d 428, 863 P.2d 673 ( Jovan B. ) ["Several modern decisions have applied the Palermo rule, but none have done so without regard to other indicia of legislative intent"]; People v. Pecci (1999) 72 Cal.App.4th 1500, 1505, 86 Cal.Rptr.2d 43 ["the Palermo rule is not to applied in a vacuum"].) Rather, "where the words of an incorporating statute do not make clear whether it contemplates only a time-specific incorporation, ‘the determining factor will be ... legislative intent ....’ " ( Jovan B. , supra , at p. 816, 25 Cal.Rptr.2d 428, 863 P.2d 673, quoting People v. Domagalski (1989) 214 Cal.App.3d 1380, 1386, 263 Cal.Rptr. 249.) We conclude that in enacting Proposition 21, the voters did not contemplate a time-specific incorporation of the then-current version of section 186.22, subdivision (f), into the gang-murder special circumstance statute.
When interpreting an initiative, 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.) "Finally, we presume that the ‘adopting body’ is aware of existing laws when enacting a ballot initiative." ( People v. Gonzales (2018) 6 Cal.5th 44, 50, 237 Cal.Rptr.3d 193, 424 P.3d 280.)
The Attorney General's contention posits an odd mix of intentional choices made by the electorate in the application of section 186.22, subdivision (f). Section 186.22 was originally enacted by the Legislature in 1987. ( People v. Albillar (2010) 51 Cal.4th 47, 56–57, 119 Cal.Rptr.3d 415, 244 P.3d 1062, citing Sen. Bill No. 1555, as amended May 22, 1987, § 1, pp. 10–11.) As part of Proposition 21, in March 2000 the electorate amended certain provisions of section 186.22 by increasing the sentences of the gang enhancements provided by subdivisions (b), (c), and (d). (Ballot Pamp., supra , text of Prop. 21, § 4, pp. 119–120.) The electorate also updated the list of predicate offenses to be used to determine a "pattern of criminal gang activity" in subdivision (e). However, the voters reenacted section 186.22, subdivision (f) without substantive change. (See Ballot Pamp., supra , text of Prop. 21, § 4, pp. 119–120.) As such, subdivision (f) of section 186.22 cannot be deemed "among the initiative's statutory provisions" made immune from legislative amendment by force of article II, section 10 of the State Constitution. ( People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 915, 265 Cal.Rptr.3d 507 ; accord, People v. Nash (2020) 52 Cal.App.5th 1041, 1064–1065, 267 Cal.Rptr.3d 148 ( Nash ); People v. Johns (2020) 50 Cal.App.5th 46, 65–66, 263 Cal.Rptr.3d 611.)
In short, the voters left intact the Legislature's power to amend the definition of a criminal street gang in section 186.22, subdivision (f). (See County of San Diego v. Commission (2018) 6 Cal.5th 196, 214, 240 Cal.Rptr.3d 52, 430 P.3d 345 ; People v. Prado (2020) 49 Cal.App.5th 480, 485, 263 Cal.Rptr.3d 79.) According to the Attorney General, however, the voters did not intend to permit any future amendment of that provision to be incorporated into the gang-murder special circumstance.
It is difficult to discern a rational reason for such an anomalous choice, and we find no basis to conclude that the electorate made it. 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. ( Manduley v. Superior Court (2002) 27 Cal.4th 537, 574, 117 Cal.Rptr.2d 168, 41 P.3d 3.) In two of those sections, Proposition 21 provided that "for all offenses committed on or after the effective date of this act, all references to existing statutes in [§§ 667, subds. (c) to (g), and 1170.125] 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, 16, pp. 123–124, italics added; see former §§ 667.1, 1170.125.) 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 to make a time-specific incorporation of section 186.22, subdivision (f), they would "have said so in readily understood terms." ( People v. Frawley (2000) 82 Cal.App.4th 784, 796, 98 Cal.Rptr.2d 555.) But there is no such language. There is simply no basis to believe that the voters understood they were precluding future amendments of subdivision (f) of section 186.22 as referred to in the gang-murder special circumstance, while permitting such future amendments for section 186.22 itself.
The Attorney General concedes that his interpretation of the gang murder special circumstance will cause "considerable confusion" in application. A jury will have to apply one definition of a criminal street gang for the sentence enhancements under section 186.22, and another definition for purposes of determining whether the defendant is eligible for capital punishment under section 192, subdivision (a)(22). Indeed, the definition of a criminal street gang applied for purposes of the gang sentence enhancements would be narrower than that applied to the special circumstance. Thus, anomalously, for the same gang-related criminal conduct in which a killing occurs, a defendant could be found not to qualify for the lesser gang sentence enhancements, but nonetheless found to qualify for capital punishment.
Furthermore, applying AB 333's amendments to the gang murder special circumstance is fully consistent with the purpose of Proposition 21. "An amendment is a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision." ( People v. Cooper (2002) 27 Cal.4th 38, 44, 115 Cal.Rptr.2d 219, 37 P.3d 403.) "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.]" ( Pearson, supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.) In deciding whether a particular legislative act amends an initiative statute, courts "need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits." ( Ibid. ) Here, A.B. 333 neither prohibits what section 11 of Proposition 21 authorizes nor authorizes what section 11 of Proposition 21 prohibits. ( Pearson, supra , 48 Cal.4th at p. 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)
In the March 7, 2000 Ballot Pamphlet, Proposition 21 was entitled the "Gang Violence and Juvenile Crime Prevention Act of 1998." It declared in relevant part 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." (Ballot Pamp., supra , text of Prop. 21, § 2, subd. (h), p. 119.) Thus, the initiative was aimed in pertinent part at increasing the sentences for "gang-related" felonies and murder. There was no distinction suggesting that what constitutes a "gang-related" murder was frozen in time for section 190.2, subdivision (a)(22), but what constitutes a "gang-related" felony for section 186.22 was not. (See People v. Caudillo (1978) 21 Cal.3d 562, 585, 146 Cal.Rptr. 859, 580 P.2d 274 ["[i]t is an established rule of statutory construction that similar statutes should be construed in light of one another"], overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225, 83 Cal.Rptr.2d 533, 973 P.2d 512.)
More fully, the Attorney General's summary in the ballot pamphlet stated, inter alia, that Proposition 21 "[i]ncreases punishment for gang-related felonies," imposes "death penalty for gang-related murder," and "[d]esignates additional crimes as violent and serious felonies, thereby making offenders subject to longer sentences." (Ballot Pamp., supra, official title and summary of Prop. 21, p. 44.)
The Legislative Analyst's summary stated in relevant part: "This measure makes various changes to laws specifically related to ... adults who are gang-related offenders, and those who commit violent and serious crimes. Specifically, it: [¶] ... [¶] Increases penalties for gang-related crimes and requires convicted gang members to register with local law enforcement agencies[, and] [¶] [i]ncreases criminal penalties for certain serious and violent offenses." (Id. , analysis of Prop. 21 by Legis. Analyst, p. 45.) After setting forth the then-current law defining " ‘gangs’ 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 certain crimes," the Legislative Analyst reported that Proposition 21 "adds gang-related murder to the list of ‘special circumstances’ that make offenders eligible for the death penalty." (Id. , analysis of Prop. 21 by Legis. Analyst, p. 46.)
The following excerpt appears under the title, "What Your Vote Means" in the Ballot Measure Summary: "A YES vote on this measure means [v]arious changes will be made to juvenile and adult criminal law. Among the more significant changes, it ... increases penalties for gang-related crimes." (Voter Information Guide, Prim. Elec. (Mar. 7, 2000) ballot measure summary of Prop. 21.)
Further, applying A.B. 333 to section 190.2, subdivision (a)(22)’s reference to section 186.22, subdivision (f), does not change the punishment for "murderers who kill as part of any gang-related activity," the relevant purpose of Proposition 21. (Ballot Pamp., supra , text of Prop. 21, § 2, subd. (h), p. 119.) It simply refines the concept of what constitutes a "gang-related" murder. Defendants deemed to have committed first degree murder while actively participating in a gang still remain eligible for capital punishment. (See People v. Superior Court (Gooden ) (2019) 42 Cal.App.5th 270, 281, 255 Cal.Rptr.3d 239 [requisite elements of an offense and punishment for that offense are separate and distinct concepts]; see also People v. Solis (2020) 46 Cal.App.5th 762, 779, 259 Cal.Rptr.3d 854 ; Nash , supra , 52 Cal.App.5th at p. 1059, 267 Cal.Rptr.3d 148.) The legislative purpose of A.B. 333 also does not offend the voter's intent in passing Proposition 21. In enacting A.B. 333, the Legislature declared that in practice, under the original definition of a criminal street gang in section 186.22, subdivision (f), "[t]he social networks of residents in neighborhoods targeted for gang suppression are often mischaracterized as gangs despite their lack of basic organizational requirements such as leadership, meetings, hierarchical decisionmaking, and a clear distinction between members and nonmembers." (Stats. 2021, ch. 699, § 2, subd. (d)(8).) Further, the Legislature concluded that "[p]eople are also frequently automatically lumped into a gang social network simply because of their family members or their neighborhood." (Id. , § 2, subd. (d)(9.) That is, in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes. Thus, in A.B. 333, the Legislature redefined the term "criminal street gang" so as to truly target the population of criminals for which an enhanced punishment is warranted.
In sum, amendment of the definition "criminal street gang" by A.B. 333 does not prohibit what Proposition 21 authorized, or authorize what Proposition 21 prohibited. We find nothing to suggest that the electorate intended to impose a time-specific incorporation of the term "criminal street gang" in the gang-murder special circumstance statute. Thus, we conclude that the term "criminal street gang" as incorporated in the gang-murder special circumstance statute was "intended to conform at all times" and "remain permanently parallel" to section 186.22. ( Jovan B. , supra , 6 Cal.4th at p. 816 & fn. 10, 25 Cal.Rptr.2d 428, 863 P.2d 673.) As to all appellants, we vacate the gang enhancement allegation findings (§ 186.22, subd. (b)(1)(C)), gang-related firearm use enhancements findings (§ 12022.53, subds. (b)-(d)/(e)(1)), and gang-murder special circumstance findings (§ 190.2, subd. (a)(22)). We also strike the sentences imposed under these findings, and remand the matter to afford the People the opportunity to retry these allegations under the current law.
c. Section 1109
See footnote *, ante .
III.-VIII.*† DISPOSITION
As to appellant Lee, on counts 1 through 6 and 9, we vacate the true findings on the gang-murder special circumstance allegations (§ 190.2, subd. (a)(22)), gang enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement allegations (§ 12022.53, subds. (b)-(d)/(e)(1)), and strike the related sentences. On counts 2 and 3, we vacate the true findings on the multiple-murder special circumstance allegations (§ 190.2, subd. (a)(3)). We also vacate the sentence on count 5.
As to appellants Robinson and Barnes, on counts 1 through 5 and 9, we vacate the true findings on the gang-murder special circumstance allegations (§ 190.2, subd. (a)(22)), gang enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement allegations (§ 12022.53, subds. (b)-(d)/(e)(1)), and strike the related sentences. As to both appellants Robinson and Barnes, on count 3, we vacate the true finding on the multiple-murder special circumstance allegation (§ 190.2, subd. (a)(3)). As to both appellants Robinson and Barnes, we also vacate the sentences imposed on count 5.
The case as to all three appellants is remanded to the superior court. On remand, the People shall decide whether to retry appellants on the gang-murder special circumstance allegations (§ 190.2, subd. (a)(22)), gang enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement allegations (§ 12022.53, subds. (b)-(d)/(e)(1)). If the People elect not to retry these allegations, the superior court is directed to resentence appellants as follow. On counts 4 and 9, appellant Lee shall be sentenced to a term of life imprisonment with a minimum term of parole eligibility of 14 years (§§ 667, subd. (e)(1), 3046), plus a consecutive term of five years (§ 667, subd. (a)(1)). On count 4, appellant Robinson shall be sentenced to a term of life imprisonment with a minimum term of parole eligibility of seven years (§ 3046), plus a consecutive term of five years (§ 667, subd. (a)(1)), and on count 9 he shall be sentenced to a term of life imprisonment with a minimum term of parole eligibility of seven years (§ 3046). On counts 4 and 9, appellant Barnes shall be sentenced to a term of life imprisonment with a minimum term of parole eligibility of seven years (§§ 664, subd. (a), 3046). The court shall resentence each appellant individually on count 5 in accordance with S.B. 567.
If the People decide to retry appellants on the gang-murder special circumstance allegations (§ 190.2, subd. (a)(22)), gang enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement allegations (§ 12022.53, subds. (b)-(d)/(e)(1)), and if any such allegations are found true, the court shall resentence appellants according to applicable law. Upon determination as to the status of these allegations (no retrial, or retrial and final resolution), the clerk of the superior court shall prepare an amended abstract of judgment for each appellant reflecting the appropriate modifications, as set forth above, and forward it to the California Department of Corrections and Rehabilitation. In addition, the clerk shall make the following additional changes.
As to appellant Lee, the clerk shall correct the sentencing minute orders to reflect one term of life imprisonment without the possibility of parole on both counts 2 and 3 pursuant to section 190.2, subdivision (a)(21), and one term of life imprisonment without the possibility of parole on count 6 pursuant to section 190.2, subdivisions (a)(3).
As to appellant Robinson, the clerk shall correct the sentencing minute orders to reflect one term of life imprisonment without the possibility of parole on count 2 pursuant to section 190.2, subdivisions (a)(3) and (a)(21), and one term of life imprisonment without the possibility of parole on count 3 pursuant to section 190.2, subdivision (a)(21). As to appellant Barnes, the clerk shall amend the abstract of judgment to reflect 1,009 days of custody credit.
As modified, the judgment as to each appellant is affirmed.
We concur:
MANELLA, P. J.
COLLINS, J.