Supreme Court of California Justia
Docket No. S117641
People v. Briceno


Filed 11/4/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S117641
v.
Ct.App. 4/3
G029525, G029607
ALBERTO FRANCISCO BRICENO et al., )

Orange County
Defendants and Appellants.
Super. Ct. No. 00NF3394

At the March 7, 2000 Primary Election, the California electorate passed
Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998.
Proposition 21 made significant changes in the law concerning gang-related crime.
In this case, we decide whether Penal Code1 section 1192.7, subdivision (c)(28)
(section 1192.7(c)(28)), which adds to the list of serious felonies “any felony
offense, which would also constitute a felony violation of Section 186.22,” applies
only to the substantive offense of active participation in a criminal street gang
defined in section 186.22, subdivision (a) (section 186.22(a)), or whether it also
applies to any felony offense committed for the benefit of a criminal street gang,

1
All further statutory references are to the Penal Code unless otherwise
indicated.



as defined in the section 186.22, subdivision (b)(1) (section 186.22(b)(1)) gang
sentence enhancement.
For the reasons stated below, we conclude 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). We reverse the judgment only insofar as the Court of Appeal
reversed the trial court’s finding that defendant had suffered a prior conviction for
a serious felony and remanded the matter for resentencing. In all other respects,
we affirm the judgment.
PROCEEDINGS BELOW
On Christmas Day, 2000, defendants Alberto Briceno and Evaristo Landin
went on a crime spree in Orange County, robbing four people at gunpoint in four
separate incidents. Defendant Briceno2 was convicted of four counts of robbery
(§ 211), and the jury found true the allegation that the robberies were committed
for the benefit of a criminal street gang under section 186.22(b)(1).3

2
The issue before the court involves only the prior conviction allegations
against defendant Briceno. There are no issues pending before our court regarding
defendant Landin. Hereafter, “defendant” refers to defendant Briceno.
3
Section 186.22(b)(1) provides in pertinent part that, “any person who is
convicted of a felony committed for the benefit of . . . any criminal street gang,
with the specific intent to promote, further, or assist in any criminal conduct by
gang members, shall, upon conviction of that felony, in addition and consecutive
to the punishment prescribed for the felony or attempted felony of which he or she
has been convicted, be punished as follows: [¶] (A) Except as provided in
subparagraphs (B) and (C), the person shall be punished by an additional term of
two, three, or four years at the court’s discretion. [¶] (B) If the felony is a serious
felony, as defined in subdivision (c) of Section 1192.7, the person shall be
punished by an additional term of five years. [¶] (C) If the felony is a violent
felony, as defined in subdivision (c) of Section 667.5, the person shall be punished
by an additional term of 10 years.”
2



In a bifurcated trial held after the jury had reached its verdicts, the trial
court found true allegations that defendant had suffered two prior convictions of
serious felonies within the meaning of the Three Strikes law4 and section 667,
subdivision (a)(1).5 One prior conviction—for shooting at an occupied vehicle in
violation of section 246—was not challenged on appeal and is not at issue here.
The other prior “conviction” was, in actuality, two convictions that occurred on
the same day but were jointly alleged as one prior serious felony—a conviction for
unlawful possession of a firearm by a felon for the benefit of a criminal street gang
(§§ 12021, subd. (a), 186.22(b)(1)), and a conviction for carrying a concealed
firearm while an active participant in, and for the benefit of, a criminal street gang
(§§ 12025, subd. (b)(3), 186.22(b)(1)). Defendant received an indeterminate
sentence of 27 years to life, consecutive to a determinate term of 23 years and four
months.
The Court of Appeal reversed the trial court’s finding that defendant’s prior
convictions of section 12021, subdivision (a), and section 12025, subdivision
(b)(3), constituted a prior conviction of a serious felony within the meaning of the
Three Strikes law and section 667, subdivision (a)(1). Noting that section 12021,

4
The Three Strikes law defines a prior conviction as “Any offense defined in
subdivision (c) of Section 667.5 as a violent felony or any offense defined in
subdivision (c) of Section 1192.7 as a serious felony in this state.” (§§ 667, subd.
(d)(1), 1170.12, subd. (b)(1).)
5
Section 667, subdivision (a)(1) provides in pertinent part that “any person
convicted of a serious felony who previously has been convicted of a serious
felony in this state or of any offense committed in another jurisdiction which
includes all of the elements of any serious felony, shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year enhancement for
each such prior conviction on charges brought and tried separately.” Section 667,
subdivision (a)(4) provides: “As used in this subdivision, ‘serious felony’ means a
serious felony listed in subdivision (c) of Section 1192.7.”
3



subdivision (a) and section 12025, subdivision (b)(3) are not listed as serious
felonies in section 1192.7, subdivision (c), the Court of Appeal rejected the
Attorney General’s argument that the conviction was a serious felony because the
sentence had been enhanced under section 186.22(b)(1), which applies to crimes
committed for the benefit of a criminal street gang.
The Attorney General had relied upon section 1192.7(c)(28), which adds to
the list of serious felonies “any felony offense, which would also constitute a
felony violation of Section 186.22.” The Court of Appeal ruled that a conviction
for a crime that is not listed as a serious felony that includes a gang enhancement
under section 186.22(b)(1) is not a strike “[b]ecause a criminal street gang
enhancement . . . cannot be used to transform an . . . offense [not on the section
1192.7, subdivision (c) serious felony list] into a ‘serious’ felony.” Equating the
term “felony violation” with “felony offense,” the Court of Appeal reasoned that
the section 1192.7(c)(28) phrase, “any felony offense, which would also constitute
a felony violation of Section 186.22” (italics added), is limited to the one
substantive felony offense contained in section 186.22, active participation in a
criminal street gang in violation of section 186.22(a).6 Section 186.22(b)(1),
because it adds an additional term of imprisonment to the base term of the
underlying felony, is a sentence enhancement and thus is not a “felony violation”

6
Section 186.22(a) provides: “Any person who actively participates in any
criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers, or
assists in any felonious criminal conduct by members of that gang, shall be
punished by imprisonment in a county jail for a period not to exceed one year, or
by imprisonment in the state prison for 16 months, or two or three years.” Section
186.22(a) is a substantive offense that is punishable as either a misdemeanor or a
felony. (People v. Robles (2000) 23 Cal.4th 1106, 1112.)
4



within the meaning of section 1192.7(c)(28). We granted the Attorney’s General
petition for review.
DISCUSSION
Section
1192.7,
subdivision (c) enumerates those felony violations that
constitute serious felonies under California law. Where a defendant has been
convicted of a serious felony, reoffending may result in severe consequences:
certain prior serious felony convictions are strikes under the Three Strikes law
(§§ 667, subds. (d)(1), (h), 667.1, 1170.12, subd. (b)(1), 1170.125; Prop. 184, § 2),
and all prior serious felony convictions subject a defendant to an additional five-
year sentence enhancement if the current offense is a serious felony. (§ 667, subd.
(a)(1) & (4).)
The electorate, in passing Proposition 21, added several new felony
violations to the list of serious felonies in section 1192.7, subdivision (c),
including section 1192.7(c)(28), which makes “any felony offense, which would
also constitute a felony violation of Section 186.22,” a serious felony. As noted,
the Court of Appeal held that this language limited the reach of section
1192.7(c)(28) to the substantive felony offense of active participation in a criminal
street gang, in violation of section 186.22(a). The Attorney General maintains that
section 1192.7(c)(28) includes any felony offense not enumerated in section
1192.7, subdivision (c) where the offense is committed for the benefit of a
criminal street gang, within the meaning of the section 186.22(b)(1) gang sentence
enhancement.
This is the court’s third opportunity to interpret gang-related provisions
enacted by Proposition 21. In Robert L. v. Superior Court (2003) 30 Cal.4th 894
(Robert L.), we held that section 186.22, subdivision (d)—an alternate penalty
provision that applies to a person convicted of a gang-related “public offense
punishable as a felony or a misdemeanor”—applies to all misdemeanors and is not
5

limited to so-called wobblers, which are offenses that are punishable as either a
misdemeanor or a felony. In Montes v. Superior Court (2003) 31 Cal.4th 350
(Montes), we held that section 186.22, subdivision (b)(5), an alternate penalty
provision that applies to any gang-related “felony punishable by imprisonment in
the state prison for life,” applies only to those offenses in which the underlying
felony itself, excluding enhancements, carries a life sentence. Here, we interpret
the phrase in section 1192.7(c)(28), “any felony offense, which would also
constitute a felony violation of Section 186.22.” For the reasons stated below, we
conclude that section 1192.7(c)(28) includes within its ambit any felony offense
committed for the benefit of a criminal street gang under the section 186.22(b)(1)
gang sentence enhancement.
“In interpreting a voter initiative . . . we apply the same principles that
govern statutory construction. [Citation.] Thus, ‘we turn first to the language of
the statute, giving the words their ordinary meaning.’ [Citation.] The statutory
language must also be construed in the context of the statute as a whole and the
overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the
language is ambiguous, ‘we refer to other indicia of the voters’ intent, particularly
the analyses and arguments contained in the official ballot pamphlet.’ [Citation.]”
(People v. Rizo (2000) 22 Cal.4th 681, 685.) In other words, “our primary purpose
is to ascertain and effectuate the intent of the voters who passed the initiative
measure.” (In re Littlefield (1993) 5 Cal.4th 122, 130.)
Turning to the language of section 1192.7(c)(28) itself, our first task is to
determine whether the phrase, “any felony offense, which would also constitute a
felony violation of Section 186.22,” has an ordinary meaning to the electorate. At
first blush, this language appears susceptible of two interpretations, one narrow
and one broader. The term “felony violation” as used in section 1192.7(c)(28)
could refer only to substantive felony offenses, as held by the Court of Appeal, in
6

which case section 1192.7(c)(28) would be necessarily limited to the one
substantive offense contained in section 186.22—the section 186.22(a) substantive
felony offense of active participation in a criminal street gang.7
However, the term “felony violation” could also be read to include sentence
enhancements, as the Attorney General argues, in which case section
1192.7(c)(28) would apply to “any felony offense, which would also constitute a
felony violation of section 186.22,” namely, a felony violation of any felony
offense that includes the section 186.22(b)(1) gang sentence enhancement.
Because it is arguable that the ordinary language of section 1192.7(c)(28) is not
clear on its face, the next step is to determine the meaning of the phrase, “any
felony offense, which would also constitute a felony violation of section 186.22,”
in light of Proposition 21 as a whole.

7
There are no other substantive offenses contained in section 186.22.
Section 186.22(b)(1), because it adds an additional term of imprisonment to the
base term of the underlying felony offense, is a sentence enhancement. (People v.
Jefferson
(2001) 21 Cal.4th 86, 101; Cal. Rules of Court, rule 4.405(c).) Section
186.22, subdivision (d) is an alternate penalty provision that applies to a person
convicted of a gang-related misdemeanor offense. (Robert L., supra, 30 Cal.4th
894.) Section 186.22, subdivision (b)(5) is an alternate penalty provision that
applies to any gang-related underlying felony “punishable by imprisonment in the
state prison for life.” (See, Montes, supra, 31 Cal.4th 350.) Section 186.22,
subdivision (b)(4) is an alternate penalty provision that provides for an
indeterminate life sentence for certain underlying felony offenses that are gang
related. (Robert L., supra, 30 Cal.4th at p. 900, fn. 5.) Neither is section 186.22,
subdivision (b)(2) a substantive offense for it provides that if the underlying felony
described in section 186.22(b)(1) is committed on school grounds, “that fact shall
be a circumstance in aggravation of the crime in imposing a term under [the
section 186.22(b)(1)]” enhancement. The remaining subdivisions of section
186.22 do not describe sentence enhancements, substantive offenses, or alternate
penalty provisions; they simply define various terms used in section 186.22 (e.g.,
§ 186.22, subds. (e), (f), (i)), or provide directions to the trial court upon
sentencing (e.g., § 186.22, subds. (b)(3), (c), (g)).
7



In
People v. Morris (1988) 46 Cal.3d 1, 16, we stated: “Statutory language
should not be interpreted in isolation, but must be construed in the context of the
entire statute of which it is a part, in order to achieve harmony among the parts.”
Viewing Proposition 21 as a whole, we conclude that the term “violation” in
section 1192.7(c)(28) includes sentence enhancements.
The most compelling evidence that the term “felony violation” as used in
section 1192.7(c)(28) includes a sentence enhancement under section 186.22(b)(1)
is that the list of serious felonies in section 1192.7, subdivision (c) itself contains a
provision in which the term “violation” specifically references a sentence
enhancement. Section 1192.7, subdivision (c)(40), enacted by Proposition 21,
adds to the list of serious felonies “any violation of Section 12022.53.” Section
12022.53 is a sentence enhancement scheme that applies to persons who use
firearms.8 Section 12022.53 uses the term “enhancement” throughout. For
example, section 12022.53, subdivision (e)(1) provides that the “[t]he
enhancements provided in this section shall apply to any person who is a principal
in the commission of an offense,” where certain facts are pled and proved. Section
12022.53, subdivision (l) provides that “[t]he enhancements provided in this
section shall not apply to the lawful use or discharge of a firearm by a public
officer . . . or by any person in lawful self-defense . . . .” This court has defined

8
Section 12022.53 provides that a person who, in the commission of a
specified felony, “personally uses a firearm, shall be punished by an additional and
consecutive term of imprisonment in the state prison for 10 years” (§ 12022.53,
subd. (b)), “personally and intentionally discharges a firearm, shall be punished by
an additional and consecutive term of imprisonment in the state prison for 20
years” (§ 12022.53, subd. (c)), or “personally and intentionally discharges a
firearm and proximately causes great bodily injury . . . or death, to any person
other than an accomplice, shall be punished by an additional and consecutive term
of imprisonment in the state prison for 25 years to life” (§ 12022.53, subd. (d)).
8



section 12022.53 as a sentence enhancement on several occasions. (See, e.g.,
People v. Oates (2004) 32 Cal.4th 1048, 1052; People v. Garcia (2002) 28 Cal.4th
1166, 1170.) “When a word or phrase is repeated in a statute, it is normally
presumed to have the same meaning throughout.” (People v. McCart (1982) 32
Cal.3d 338, 344.) The fact that section 1192.7, subdivision (c)(40) uses the term
“violation” to refer to a sentence enhancement that constitutes a serious felony
strongly supports the conclusion that the term “felony violation” as used in section
1192.7(c)(28) also includes a sentence enhancement.
Not only does the list of serious felonies in section 1192.7, subdivision (c)
itself contain a provision that refers to a violation as including an enhancement,
another felony reenacted by Proposition 21, Welfare and Institutions Code section
707, subdivision (b)(21), specifically refers to the term “felony violation” as
encompassing the section 186.22(b)(1) gang sentence enhancement. Welfare and
Institutions Code section 707, subdivision (b)(21) establishes a presumption that a
16- or 17-year-old minor is “not a fit and proper subject to be dealt with under
juvenile court law” where he or she is charged with “[a]ny violent felony, as
defined in Subdivision (c) of Section 667.5 of the Penal Code, which would also
constitute a felony violation of subdivision (b) of Section 186.22 of the Penal
Code.” (Italics added.) “Where a voter initiative contains a provision that is
identical to a provision previously enacted by the Legislature, in the absence of an
indication of a contrary intent, we infer that the voters intended the provision to
have the same meaning as the provision drafted by the Legislature.” (Montes,
supra, 31 Cal.4th at pp. 355-356.) The phrase in Welfare and Institutions Code
section 707, subdivision (b)(21), “which would also constitute a felony violation,”
is identical to its counterpart in section 1192.7, subdivision (c)(28), and its
meaning is clear: the Legislature, and now the voters, intended that the term
9

“felony violation” in Proposition 21 include the section 186.22(b)(1) gang
sentence enhancement.
In
Robert L., supra, 30 Cal.4th 894, we held that a misdemeanor offense
committed for the benefit of a criminal street gang could be punished as a felony
under section 186.22, subdivision (d). Thus, the section 1192.7(c)(28) phrase
“felony violation of Section 186.22,” simply distinguishes crimes that are felonies
regardless of section 186.22 from crimes that are initially misdemeanors, but
become felonies by virtue of section 186.22. As stated in People v. Arroyas
(2002) 96 Cal.App.4th 1439, 1448 (Arroyas), a “misdemeanor, converted to a
felony by [section 186.22,] subdivision (d) [is not also] subject to the felony
enhancement provided in [section 186.22,] subdivision (b)(1).”
Our conclusion is consistent with the voters’ intent to dramatically increase
the penalties for all gang-related felony offenses. In the Findings and Declarations
section of Proposition 21, “The people [found] and declare[d]” that: “Criminal
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.” (Ballot Pamp., Primary
Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (b), p. 119 (hereafter, Ballot
Pamphlet).) “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.” (Id., § 2, subd. (h), p. 119, italics added.) “Dramatic changes
are needed in the way we treat . . . criminal street gangs . . . if we are to avoid the
predicted, unprecedented surge in . . . gang violence.” (Id., § 2, subd. (k), p. 119.)
Nothing in the above quoted language suggests that the voters intended to
limit section 1192.7(c)(28) to the 186.22, subdivision (a) substantive felony
offense of active participation in a criminal street gang. Instead, consistent with
their intent to punish all gang-related felony offenses more severely, section
10

1192.7(c)(28) broadly covers “any felony offense [that] violat[es] Section 186.22.”
(Italics added.) By referring to section 186.22 generally, section 1192.7(c)(28)
demonstrates the voters’ intent also to encompass subdivision (b) of section
186.22, which defines gang-enhanced felonies. (See, e.g., People v. Murphy
(2001) 25 Cal.4th 136, 143 [“the electorate and the Legislature have both shown
that they know how to use language expressly requiring a violation of [a specific
Penal Code section] when that is their intent”].)
Defendant argues, however, that if section 1192.7(c)(28) defines a “serious
felony” as any felony conviction that includes a gang enhancement under section
186.22(b)(1), there would be no need for Proposition 21 to have enacted section
667.5, subdivision (c)(19), which adds to the list of violent felonies “[e]xtortion, as
defined in Section 518, which would constitute a felony violation of Section
186.22 of the Penal Code,” and section 667.5, subdivision (c)(20), “[t]hreats to
victims or witness, as defined in Section 136.1, which would constitute a felony
violation of Section 186.22 of the Penal Code,” because the two subdivisions
would be surplusage. To the contrary, the enactment of these two subdivisions
furthers the argument that any felony offense that includes a gang enhancement
under section 186.22(b)(1) is a serious felony as defined by section 1192.7(c)(28).
Specifically, extortion (§ 518) is a felony offense that becomes a violent
felony when it is committed for the benefit of a criminal street gang under the
section 186.22(b)(1) gang enhancement. (§ 667.5, subd. (c)(19).) Making threats
to victims or witnesses (§ 136.1), is a serious felony (§ 1192.7, subd. (c)(37)) that
becomes a violent felony when it is committed for the benefit of a criminal street
gang under the section 186.22(b)(1) gang enhancement. (§ 667.5, subd. (c)(20).)
Section 1192.7(c)(28), on the other hand, turns any felony offense that includes a
gang enhancement under section 186.22(b)(1) into a serious felony. Thus,
contrary to defendant’s claim, each of the above subdivisions has a different
11

effect; there is no overlap among these provisions, which were all enacted by
Proposition 21, suggesting that the voters thoughtfully enacted a comprehensive
penalty and punishment scheme.
Finally, turning any felony offense into a serious felony by virtue of
conduct that would invoke a sentence enhancement is not uncommon in section
1192.7, subdivision (c). Section 1192.7, subdivision (c)(8)9 makes any felony not
otherwise enumerated in section 1192.7, subdivision (c) a serious felony if the
defendant personally uses a firearm or personally inflicts great bodily injury,10 and
section 1192.7, subdivision (c)(23)11 makes any felony not otherwise enumerated
in section 1192.7, subdivision (c) a serious felony if the defendant personally uses
a dangerous or deadly weapon.12 (See, e.g., People v. Equarte (1986) 42 Cal.3d
456, 464 [under section 1192.7, subdivision (c)(23), “a defendant who ‘personally
uses a dangerous or deadly weapon’ in the commission of a felony [is] classified
as a ‘serious’ felon and [is] subject to a five-year enhancement [under section 667,
subdivision (a)(1)] if he has previously been convicted of a serious felony”].) We
conclude, therefore, that the voters intended section 1192.7(c)(28) to define

9
Section 1192.7, subdivision (c)(8) provides that “any felony in which the
defendant personally inflicts great bodily injury on any person, other than an
accomplice, or any felony in which the defendant personally uses a firearm” is a
serious felony.
10
The language in section 1192.7, subdivision (c)(8) corresponds to the
language in the section 12022.5 enhancement, personal use of a firearm in the
commission of a felony, and the language in the section 12022.7 enhancement,
personal infliction of great bodily injury on a person other than an accomplice.
11
Section 1192.7, subdivision (c)(23) provides that “any felony in which the
defendant personally used a dangerous or deadly weapon” is a serious felony.
12
The language in section 1192.7, subdivision (c)(23) corresponds to the
language in the section 12022, subdivision (b)(1) enhancement, personal use of a
deadly or dangerous weapon in the commission of a felony.
12



“serious felony” as including any felony offense that is committed for the benefit
of a criminal street gang under the section 186.22(b)(1) gang sentence
enhancement.13
In so holding, we disagree with the Court of Appeal that this interpretation
of subdivision (c)(28) is derailed by the language of section 186.22(b)(1)(B) and
(C). The Court of Appeal was apparently concerned that if section 1192.7(c)(28)
made all gang-related felonies serious felonies, a defendant convicted of a gang-
related felony would never be punished under section 186.22(b)(1)(A), the
sentence enhancement that applies where the defendant is convicted of a felony
that is gang related, but would always be subject to the sentence enhancement for
a serious felony that is gang related under section 186.22(b)(1)(B), rendering
section 186.22(b)(1)(A) surplusage. Not so.
When Proposition 21 added section 1192.7(c)(28), it also amended section
186.22(b)(1) by adding the substantive language contained in (b)(1)(A), (B), and
(C). (Ballot Pamp., supra, text of Prop. 21, § 4, p. 119.)14 Section

13
In light of our holding, we do not address the Attorney General’s alternate
argument that defendant’s guilty plea to violations of section 12021, subdivision
(a) and section 12025, subdivision (b)(3), plus the admission of the section
186.22(b)(1) gang enhancement as to both offenses is equivalent to the section
186.22(a) substantive offense.
14
Prior to the enactment of Proposition 21, section 186.22(b)(1) provided in
pertinent part that “any person who is convicted of a felony committed for the
benefit of . . . any criminal street gang . . . shall, in addition and consecutive to the
punishment prescribed for the felony . . . be punished by an additional term of one,
two, or three years at the court’s discretion.” (Stats. 1997, ch. 500, § 2.)
Proposition 21 amended section 186.22(b)(1) to read: “any person who is
convicted of a felony committed for the benefit of . . . any criminal street gang . . .
shall, in addition and consecutive to the punishment prescribed for the felony . . .
be punished [as follows: (A) Except as provided in subparagraphs (B) and (C), the
person shall be punished] by an additional term two, three or four years at the
court’s discretion[. (B) . . . If] the felony is a serious felony, as defined in

(footnote continued on next page)
13



186.22(b)(1)(A) provides that a person convicted of “a felony” that is gang related
shall receive, at the court’s discretion, an additional two-, three-, or four-year term
at sentencing. Section 186.22(b)(1)(B) provides that a person convicted of “a
serious felony” that is gang related shall receive an additional five-year term at
sentencing. Section 186.22(b)(1)(C) provides that a person convicted of a “violent
felony” that is gang-related shall receive an additional 10-year term at sentencing.
Thus, section 186.22(b)(1)(A), (B), and (C) speak to an event that occurs in the
current proceeding. Section 1192.7, subdivision (c), on the other hand, comes into
play only if the defendant reoffends, at which time any prior felony that is gang
related is deemed a serious felony. Thus, any felony that is gang related is not
treated as a serious felony in the current proceeding, giving effect to section
186.22(b)(1)(A). (See, e.g., People v. Rizo, supra, 22 Cal.4th at pp. 685, 687 [as
with statutes, courts are to give meaning to every word of an initiative if possible,
and should avoid a construction making any word surplusage].)
Not only does this interpretation give meaning to section 186.22(b)(1)(A),
(B), and (C), it also avoids the impermissible bootstrapping that would occur if
any felony that is gang related is also deemed serious in the current proceeding.
Specifically, while it is proper to define any felony committed for the benefit of a
criminal street gang as a serious felony under section 1192.7(c)(28), it is improper

(footnote continued from previous page)

subdivision (c) of Section 1192.7, the person shall be punished by an additional
term of five years. [(C)] If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional term of 10
years.” (Ballot Pamp., supra, text of Prop. 21, § 4, p. 119.) In 2001, the
Legislature made clarifying changes to section 186.22(b)(1) by adding the
bracketed language and creating section 186.22(b)(1)(A), (B), & (C). (Stats.
2001, ch. 854, § 22.)
14



to use the same gang-related conduct again to obtain an additional five-year
sentence under section 186.22(b)(1)(B). As stated by the Court of Appeal in
Arroyas, supra, 96 Cal.App.4th 1439, in reference to whether a gang-related
misdemeanor punished as a felony under section 186.22, subdivision (d) could
further be enhanced under the section 186.22(b)(1) gang enhancement, “Although
[section 186.22,] subdivision (d) allows the court to impose felony punishment for
a misdemeanor committed with a gang-related purpose, nothing in the statute or in
its stated purposes suggests an intention of the people of this state to bootstrap
[section 186.22,] subdivision (d) misdemeanors into [section 186.22,] subdivision
(b)(1) felonies as a means of applying a double dose of harsher punishment.”
(Arroyas, supra, 96 Cal.App.4th at p. 1445; see also Montes, supra, 30 Cal.4th at
p. 907, fn. 18.)
Similarly, although section 1192.7(c)(28) turns any prior gang-related
felony offense into a strike if a defendant reoffends, nothing in Proposition 21 or
in its stated purposes suggests an intention of the voters to bootstrap, in the same
proceeding, any felony offense committed for the benefit of a criminal street gang
into a section 186.22(b)(1)(B) offense “as a means of applying a double dose of
harsher punishment.” (Arroyas, supra, 96 Cal.App.4th at p. 1445.)
15

DISPOSITION
We conclude that the judgment of the Court of Appeal be reversed only
insofar as the Court of Appeal reversed the trial court’s prior serious felony
finding, vacated the sentence, and remanded for resentencing. In all other
respects, the judgment is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.

16



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Briceno
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 109 Cal.App.4th 1330
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S117641
Date Filed: November 4 , 2004
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: Gregg L. Prickett

__________________________________________________________________________________

Attorneys for Appellant:

Leslie Conrad, under appointment by the Supreme Court, for Defendant and Appellant Alberto Francisco
Briceno.

Frederick L. McBride, under appointment by the Court of Appeal, for Defendant and Appellant Evaristo
Landin.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Gil P. Gonzalez and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff
and Respondent.

Tony Rackauckas, District Attorney (Orange) and Brian N. Gurwitz, Deputy District Attorney, as Amici
Curiae on behalf of Plaintiff and Respondent.


17

Counsel who argued in Supreme Court (not intended for publication with opinion):

Leslie Conrad
15332 Antioch St., pmb 501
Pacific Palisades, CA 90272
(310) 459-8828

Ronald A. Jakob
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2580

Brian N. Gurwitz
District Attorney
401 Civic Center Drive West
Santa Ana, CA 92701
(714) 347-8790

18


Opinion Information
Date:Docket Number:
Thu, 11/04/2004S117641

Parties
1Briceno, Alberto Francisco (Defendant and Appellant)
California State Prison
Represented by Leslie C. Conrad
Attorney at Law
15332 Antioch Street, PMB 501
Pacific Palisades, CA

2Landin, Evaristo (Defendant and Appellant)
P.O. Box 1030
Soledad, CA 93960

Represented by Frederick L. Mcbride
Attorney at Law
1401 North Tustin Avenue, Suite 240
Santa Ana, CA

3The People (Plaintiff and Respondent)
Represented by Ronald A. Jakob
Office of the Attorney General
110 West A Street, Suite 1100
San Diego, CA

4Orange County District Attorneys Office (Amicus curiae)
Represented by Brian Neal Gurwitz
DA Orange County
700 Civic Center Dr W
Santa Ana, CA


Disposition
Nov 4 2004Opinion filed

Dockets
Jul 22 2003Petition for review filed
  By counsel for appellant {Alberto Francisco Briceno}.
Jul 22 2003Record requested
 
Jul 28 20032nd petition for review filed
  In San Diego by counsel for Respondent {The People}.
Aug 12 2003Received Court of Appeal record
  yellow plastic file
Aug 13 2003Received Court of Appeal record
  G029607-yellow plastic file
Sep 2 20032nd record request
  remaining records
Sep 5 2003Received Court of Appeal record
  two yellow plastic files
Sep 16 2003Time extended to grant or deny review
  to and including October 24, 2003, or the date upon which review is either granted or denied.
Sep 24 2003Petition for Review Granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ. Kennard, J. and Werdegar, J., voted to grant appellants' petition for review as to issue III only. RESPONDENT'S PETITION FOR REVIEW GRANTED.
Oct 17 2003Opening brief on the merits filed
  by counsel for resp. (People)
Oct 28 2003Counsel appointment order filed
  Leslie Conrad is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Nov 24 2003Answer brief on the merits filed
  by counsel for (Albert F. Briceno)
Dec 12 2003Reply brief filed (case fully briefed)
  by counsel for resp. (People)
Jan 9 2004Change of Address filed for:
  aplt. (Evaristo Landin)
Jan 13 2004Received application to file amicus curiae brief; with brief
  by Orange Co. Dist. Atty Office (non-party) (brief under same cover) 40k
Feb 18 2004Permission to file amicus curiae brief granted
  Orange County District Attorney's Office in support of respondent.
Feb 18 2004Amicus curiae brief filed
  Orange County District Attorney's Office. (non-party) An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 10 2004Request for extension of time filed
  counsel for petnr. (Briceno) request extension of time to March 19, 2004 and relief from default to file response to amicus curiae brief of O.C. Dist. Attys. Office.
Mar 12 2004Extension of time granted
  Appellant's time to serve and file the response to amicus curiae brief is extended to and including March 19, 2004.
Mar 18 2004Response to amicus curiae brief filed
  to ac brief of Orange County District Attorney>>appellant Alberto Briceno
May 5 2004Received Court of Appeal record
  CT=2, RT=4
Aug 11 2004Case ordered on calendar
  9-9-04, 1:30pm, S.F.
Aug 18 2004Filed:
  Request of the Attorney General to allocate 10 min of oral argument time to Brian Gurwitz of the Orange Co. D.A. (rec'd in San Diego)
Aug 23 2004Supplemental brief filed
  by (AG) counsel for resp.(People)
Aug 26 2004Order filed
  the request of counsel for resp to allow two counsel to argue on behalf of resp at oral argument is hereby granted.
Aug 26 2004Order filed
  the request of resp to allocate to a/c Orange County District Attorney 10 min of resp's oral argument time is granted.
Sep 9 2004Cause argued and submitted
 
Nov 4 2004Opinion filed
  Reversed and affirmed in part. OPINION BY: Moreno, J. --- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown.JJ.
Dec 7 2004Remittitur issued (criminal case)
 
Dec 13 2004Received:
  receipt for remittitur fron CA 4/3
Dec 15 2004Compensation awarded counsel
  Atty Conrad

Briefs
Oct 17 2003Opening brief on the merits filed
 
Nov 24 2003Answer brief on the merits filed
 
Dec 12 2003Reply brief filed (case fully briefed)
 
Feb 18 2004Amicus curiae brief filed
 
Mar 18 2004Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website