Supreme Court of California Justia
Docket No. S119294
People v. Lopez


Filed 1/6/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S119294
v.
Ct.App. 2/5 B161668
JESUS LOPEZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA212534

Penal Code section 186.22, subdivision (b) establishes alternative methods
for punishing felons whose crimes were committed for the benefit of a criminal
street gang. Section 186.22, subdivision (b)(1)(C) (section 186.22(b)(1)(C))
imposes a 10-year enhancement when such a defendant commits a violent felony.
Section 186.22(b)(1)(C) does not apply, however, where the violent felony is
“punishable by imprisonment in the state prison for life.” (Pen. Code, § 186.22,
subd. (b)(5).) Instead, section 186.22, subdivision (b)(5) (section 186.22(b)(5))
applies and imposes a minimum term of 15 years before the defendant may be
considered for parole.
In this case, we must decide whether a gang-related first degree murder,
which is punishable by a term of 25 years to life, carries an additional 10-year
enhancement under Penal Code section 186.22(b)(1)(C) or, alternatively, a 15-year
minimum parole eligibility term under section 186.22(b)(5). For the reasons
stated below, we conclude that first degree murder is a violent felony that is
1



punishable by imprisonment in the state prison for life and therefore is not subject
to a 10-year enhancement under section 186.22(b)(1)(C).
BACKGROUND
On April 25, 2000, defendant shot and killed a rival gang member outside a
Pizza Hut at the intersection of Florence and Figueroa in Los Angeles. A jury
convicted defendant of first degree murder (Pen. Code, § 187)1 and found that
defendant had committed the murder for the benefit of a criminal street gang
(§ 186.22, subd. (b)) and that he had personally used and intentionally discharged
a firearm to commit the murder (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-
(d)). The trial court sentenced defendant to 25 years to life in state prison for the
murder and 25 years to life for the firearm use, both consecutive to a 10-year
criminal street gang enhancement under section 186.22(b)(1)(C).
The Court of Appeal recalculated defendant’s presentence custody credits
but otherwise affirmed the judgment, including the 10-year enhancement under
section 186.22(b)(1)(C). Because the Courts of Appeal have divided over the
application of the 10-year enhancement in murder cases (see People v. Montes
(2003) 31 Cal.4th 350, 361, fn. 14), we granted review of the following issue: Is a
defendant who is convicted of first degree murder with a finding that the crime
was committed for the benefit of a criminal street gang within the meaning of
Penal Code section 186.22 subject to an enhancement of 10 years under section
186.22(b)(1)(C) or, alternatively, a minimum parole eligibility term of 15 years
under section 186.22(b)(5)?

1
All further statutory references are to the Penal Code unless otherwise
noted.
2



DISCUSSION
Section 186.22 was enacted in 1988 as part of the California Street
Terrorism Enforcement and Prevention Act (STEP Act), section 186.20 et seq. As
originally enacted, former section 186.22, subdivision (b) provided that “[a]ny
person who is convicted of a felony . . . which is 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 be punished in the following
manner: [¶] . . . [¶] (2) Except as provided in paragraph (3), any person who
violates this subdivision in the commission of a felony 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. . . . [¶] (3)
Any person who violates this subdivision in the commission of a felony
punishable by imprisonment in the state prison for life, shall not be paroled until a
minimum of 15 calendar years have been served.” (Stats. 1988, ch. 1256, § 1, p.
4180.)
Over the years, the statute has been amended and reenacted, most
significantly on March 7, 2000, when California voters passed Proposition 21, the
Gang Violence and Juvenile Crime Prevention Act of 1998, which, among other
things, increased the penalties in former section 186.22, subdivision (b)(2) and
added a new exception to that provision’s opening clause. (Ballot Pamp., Primary
Elec. (Mar. 7, 2000) text of Prop. 21, § 4, pp. 119-120 (Ballot Pamphlet).) The
provisions quoted above were renumbered but otherwise experienced no
substantive change. After subsequent nonsubstantive changes, section 186.22,
subdivision (b)(1) now provides: “Except as provided in paragraphs (4) and (5),
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
3

addition and consecutive to the punishment prescribed for the felony . . . be
punished as follows: [¶] . . . [¶] (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.” Section 186.22, former subdivision (b)(3) was renumbered as
subdivision (b)(5) and now provides: “Except as provided in paragraph (4), any
person who violates this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life, shall not be paroled until a minimum of
15 calendar years have been served.”
The question presented here is whether a first degree murder committed for
the benefit of a gang is subject to the 10-year enhancement in section
186.22(b)(1)(C) or whether such a murder falls within that subdivision’s excepting
clause and is governed instead by the 15-year minimum parole eligibility term in
section 186.22(b)(5). In interpreting a voter initiative, we apply the same
principles that govern our construction of a statute. (Robert L. v. Superior Court
(2003) 30 Cal.4th 894, 900.) We turn first to the statutory language, giving the
words their ordinary meaning. (Id. at p. 901.) If the statutory language is not
ambiguous, then the plain meaning of the language governs. (People v. Montes
supra, 31 Cal.4th at p. 356.) If, however, the statutory language lacks clarity, we
may resort to extrinsic sources, including the analyses and arguments contained in
the official ballot pamphlet and the ostensible objects to be achieved. (Ibid.;
Robert L., supra, 30 Cal.4th at p. 901.)
Defendant contends that the statutory language is plain and its meaning
unmistakable. He begins with section 186.22(b)(5), which applies when the
felony is “punishable by imprisonment in the state prison for life.” In his view,
first degree murder, which is punishable by “imprisonment in the state prison for a
term of 25 years to life” (§ 190, subd. (a)), is such an offense. In support, he cites
People v. Johnson (2003) 109 Cal.App.4th 1230, 1238, People v. Harper (2003)
4

109 Cal.App.4th 520, 525, and People v. Ortiz (1997) 57 Cal.App.4th 480, 485-
486, all of which hold the statutory language is plain and unambiguous and all of
which refuse to impose the 10-year gang enhancement for the offense of murder.
The People, on the other hand, contend that the phrase “punishable by
imprisonment . . . for life” in section 186.22(b)(5) is ambiguous in that it could
apply to all life terms (including terms of years to life), as defendant contends, or
merely “straight” life terms, which require only a minimum of seven years of
incarceration before a defendant becomes eligible for parole (§ 3046). The
Attorney General claims that the statutory context, history, and practical
consequences of defendant’s construction compel a conclusion that section
186.22(b)(5) applies only to straight life terms and therefore does not apply to first
or second degree murder. Amicus curiae California District Attorneys Association
(CDAA) concedes that section 186.22(b)(5) could apply to a term of years to life,
but only as long as the minimum term is less than 15 years, and therefore does not
apply to first or second degree murder.
In our view, defendant has the better of the argument. In People v. Yates
(1983) 34 Cal.3d 644, we construed similar language in Penal Code former section
1070, subdivision (a), which then provided that “ ‘[i]f the offense charged be
punishable with death, or with imprisonment in the state prison for life, the
defendant is entitled to 26 and the state to 26 peremptory challenges.’ ” (Yates,
supra, 34 Cal.3d at p. 646.) We held that “ ‘punishable . . . with imprisonment in
the state prison for life’ ” in section 1070 included both a straight life term (as in
section 3046) as well as a term of years to life that was at least equally severe.
(Yates, supra, 34 Cal.3d at p. 647; see also People v. Smith (1984) 35 Cal.3d 798,
808-809.) Virtually identical language—i.e., “punishable by imprisonment in the
state prison for life”—appears in section 186.22(b)(5). “ ‘It is a well-recognized
rule of construction that after the courts have construed the meaning of any
5

particular word, or expression, and the legislature subsequently undertakes to use
these exact words in the same connection, the presumption is almost irresistible
that it used them in the precise and technical sense which had been placed upon
them by the courts.’ ” (In re Jeanice D. (1980) 28 Cal.3d 210, 216.) It therefore
appears that the Legislature intended section 186.22(b)(5) to encompass both a
straight life term as well a term expressed as years to life (other than those
enumerated in subdivision (b)(4)) and therefore intended to exempt those crimes
from the 10-year enhancement in subdivision (b)(1)(C). (See People v.
Sengpadychith (2001) 26 Cal.4th 316, 327.)
The Attorney General’s contention that an ambiguity was created by
Proposition 21’s use of the word “indeterminate” in section 186.22, subdivision
(b)(4) is unpersuasive. New subdivision (b)(4) states that a defendant who is
convicted of specified felonies “shall . . . be sentenced to an indeterminate term of
life imprisonment with a minimum term of the indeterminate sentence calculated”
as provided. (Italics added.) The Attorney General reasons that section
186.22(b)(5), which omits the word “indeterminate,” thereby meant to exclude
punishments expressed as a term of years to life. Although our case law has
struggled in the past over whether straight life sentences were “determinate” or
“indeterminate” (People v. Felix (2000) 22 Cal.4th 651, 657-659 [citing cases]),
that debate was effectively at an end by 2000, when the voters enacted Proposition
21. Our contemporaneous case law described a straight life sentence as
“indeterminate” (People v. Jefferson (1999) 21 Cal.4th 86, 90; Dix v. Superior
Court (1991) 53 Cal.3d 442, 462, fn. 14); Court of Appeal opinions in that period
likewise “generally described a life sentence as indeterminate” (People v. Felix,
supra, 22 Cal.4th at p. 658 [citing cases]); and “[t]he drafters of the California
Rules of Court also considered a life sentence indeterminate.” (Ibid.) It thus
seems exceedingly unlikely that the voters, by using the word “indeterminate” in
6

new subdivision (b)(4), had intended to alter the meaning of subdivision (b)(5)—
which was left substantively unchanged—so that it applied only to “determinate”
life terms. Indeed, “[w]here 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. [Citation.]
Because there is no evidence of a contrary intent here, we infer that the voters
intended section 186.22(b)(5) to have the same meaning as the identically worded
provision drafted by the Legislature in 1988.” (People v. Montes, supra, 31
Cal.4th at pp. 355-356, fn. omitted.)2
Even if we were to find an ambiguity, however, the People have not
identified anything to suggest the Legislature or the voters impliedly intended to
exclude first or second degree murder from the ambit of section 186.22(b)(5). The
Attorney General and amicus curiae focus mainly on the fact that defendant’s
construction of section 186.22(b)(5), which imposes a minimum parole eligibility
term of 15 years, will have no practical effect for first degree murderers, who now

2
We also note that in 1988, when the Legislature enacted the STEP Act, it
had already amended section 3046 to include both straight life terms and terms of
years to life, such as the punishment for murder. (Stats. 1988, ch. 214, § 1, p. 831;
see People v. Jenkins (1995) 10 Cal.4th 234, 251.) The People thus fail to offer
any evidence that the voters or the Legislature viewed the two types of life terms
as so fundamentally distinct that section 186.22(b)(5) (or its predecessors) must be
construed to reflect this hypothesized (but unstated) distinction. And, inasmuch as
the 10-year enhancement does not apply to the indeterminate life terms specified
in section 186.22, subdivision (b)(4), even when the minimum term exceeds 15
years, it is neither absurd nor anomalous to conclude that the enhancement
likewise does not apply to the indeterminate life terms included in subdivision
(b)(5). As defendant observes, “[t]here is no indication voters intended a different
result as regards the determinate enhancement depending . . . on which particular
law . . . is applied to reach the minimum term of 15 years or more for a life crime.”
7



have a minimum parole eligibility term of 25 years (§ 190, subds. (a), (e)), or for
second degree murderers, who now have a minimum parole eligibility term of 15
years (ibid.). Yet Proposition 21 recognized that not all of its provisions
necessarily established the greatest possible punishment. Indeed, the initiative
itself stated that “if any provision in this act conflicts with another section of law
which provides for a greater penalty or longer period of imprisonment that the
latter provision shall apply, pursuant to Section 654 of the Penal Code.” (Ballot
Pamp., supra, text of Prop. 21, § 37, p. 131.) Thus, the fact that section 190 fixes
a parole eligibility date equal to or greater than that provided by section
186.22(b)(5) is neither an absurdity nor an anomaly but rather the type of
contingency contemplated by section 37 of the initiative. As that section provides
(and as defendant concedes), the greater penalty set forth in section 190—i.e., 25
years to life—is the proper punishment for defendant’s first degree murder
conviction. The true finding under section 186.22(b)(5), which provides for a
lower minimum term, “is a factor that may be considered by the Board of Prison
Terms when determining a defendant’s release date, even if it does not extend the
minimum parole date per se.” (People v. Johnson, supra, 109 Cal.App.4th at p.
1238.)
The Attorney General also cites one portion of the proponents’ argument in
favor of the initiative, which asked, “if a violent gang member believes the worst
punishment he might receive for a gang-ordered murder is incarceration at the
California Youth Authority until age 25, will that stop him from taking a life?”
and promised that “Proposition 21 ends the ‘slap on the wrist’ of current law by
imposing real consequences for GANG MEMBERS, RAPISTS AND
MURDERERS who cannot be reached through prevention or education.” (Ballot
Pamp., supra, argument in favor of Prop. 21, p. 48.) But the voters’ desire to end
the “slap on the wrist” does not compel a conclusion that a 10-year enhancement
8

must be added to a term of 25 years to life. Rather, the initiative sought to impose
real consequences by permitting the People to file charges of murder and specified
sex offenses against juveniles 14 years of age or older directly in criminal court,
without a finding of unfitness by the juvenile court (see Welf. & Inst. Code, § 602,
subd. (b)), and by adding gang-related murders to the list of special circumstances
authorizing imposition of the death penalty or life imprisonment without the
possibility of parole (Pen. Code, § 190.2, subd. (a)(22)). As CDAA points out, the
text of Proposition 21 declares 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.) Our construction of section 186.22(b)(5)
in no way narrows the People’s options with respect to these penalties.
The more relevant legislative history, in our view, is that surrounding the
enactment of the STEP Act in 1988, which stated repeatedly that section 186.22,
former subdivision (b)(3) (now subdivision (b)(5)) applied to “any life prison
term.” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1555 (1987-
1988 Reg. Sess.) as amended June 23, 1987, p. 2; Assem. Com. on Public Safety,
3d reading analysis of Assem. Bill No. 2013 (1987-1988 Reg. Sess.) as amended
Sept. 1, 1987, p. 2; see also Assem. Com. on Ways & Means, Analysis of Assem.
Bill No. 2013 (1987-1988 Reg. Sess.) as amended Aug. 18, 1987 [“any life
sentence”].) Nothing in these materials suggests that section 186.22(b)(5) was
limited only to straight life terms or that it excluded the crime of murder.
The People’s proffered interpretation is also inconsistent with a 1988
enrolled bill report written by the Youth and Adult Correctional Agency, which
analyzed the financial impact of the provision: “ ‘This proposed provision relating
to life terms [former section 186.22, subdivision (b)(3), now section 186.22(b)(5)]
would apply to all lifers (except life without possibility of parole). This would
9

result in these lifers having their first parole hearing delayed, except for first
degree murderers with a sentence of 25 years to life.’ ” (People v. Montes, supra,
31 Cal.4th at p. 357, quoting Cal. Youth and Adult Correctional Agency, Enrolled
Bill Rep. on Assem. Bill No. 2013 (1987-1988 Reg. Sess.) prepared for Governor
Deukmejian (Sept. 1, 1988) p. 2.) An attachment to that report listing the then
current and proposed minimum eligible parole dates (MEPD) for life prisoners
explained that the new law would increase the MEPD for second degree murderers
from 10 years to 15 years but would have no effect on the MEPD for first degree
murders, which was then 16 years 8 months. (Montes, supra, 31 Cal.4th at p. 358,
fn. 10.)
In sum, at the time the STEP Act was enacted, the predecessor to section
186.22(b)(5) was understood to apply to all lifers, except those sentenced to life
without the possibility of parole. Contrary to the People’s naked assertion, we
find no indication that the voter-approved amendment in June 1998 to section 190,
subdivision (e), which eliminated postsentence credits and thereby increased the
MEPD for first and second degree murderers, impliedly altered the meaning of “a
felony punishable in the state prison for life” in that predecessor provision. (See
Ballot Pamp., Primary Elec. (June 2, 1998) Official Title and Summary of Prop.
222, p. 98.) We likewise find no indication that Proposition 21, which reenacted
the predecessor provision without substantive change and renumbered it as
subdivision (b)(5), impliedly restricted its reach. Finally, we find no support for
CDAA’s contention that the Legislature or the voters intended the applicability of
subdivision (b)(1)(C) and subdivision (b)(5) to “shift, depending upon the current
minimum parole eligibility term for murder, and whether or not section 3046 can
have an effect.” We find instead that the plain language of section 186.22(b)(5)
governs and therefore conclude that the Court of Appeal erred in applying the 10-
year gang enhancement to defendant’s first degree murder conviction.
10

DISPOSITION
The judgment of the Court of Appeal is affirmed but the sentence must be
modified to delete the 10-year gang enhancement imposed under Penal Code
section 186.22(b)(1)(C). The cause is remanded to the Court of Appeal for further
proceedings consistent with this opinion.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.


11



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

Name of Opinion People v. Lopez
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 8/26/03 - 2d, Dist., Div. 5
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S119294
Date Filed: January 6, 2005
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Michael E. Pastor

__________________________________________________________________________________

Attorneys for Appellant:

Joseph Shipp, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Donald E. De Nicola, Margaret E. Maxwell and Jeffrey B. Kahan,
Deputy Attorneys General, for Plaintiff and Respondent.

David La Bahn; Steve Cooley, District Attorney (Los Angeles), Patrick D. Moran and Brent Riggs, Deputy
District Attorneys, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff
and Respondent.


12

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

Joseph Shipp
Post Office Box 20347
Oakland, CA 94620
(510) 530-9043

Jeffrey B. Kahan
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90103
(213) 897-2285

13


Opinion Information
Date:Docket Number:
Thu, 01/06/2005S119294

Parties
1Lopez, Jesus M. (Defendant and Appellant)
Represented by Joseph C. Shipp
Attorney at Law
P O Box 20347
Oakland, CA

2The People (Plaintiff and Respondent)
Represented by Attorney General - Los Angeles Office
300 South Spring Street, 5th Floor
300 South Spring Street, 5th Floor
Los Angeles, CA

3California District Attorneys Association (Amicus curiae)
Represented by Brent D. Riggs
Ofc District Attorney
320 West Temple Street
Los Angeles, CA


Disposition
Jan 6 2005Opinion: Affirmed as modified

Dockets
Sep 26 2003Received Court of Appeal record
  one doghouse.
Sep 26 2003Petition for review filed
  by counsel for aplt c/a rec req
Nov 12 2003Petition for Review Granted; issues limited (criminal case)
  The issue to be briefed and argued is limited to the following: Is a defendant who is convicted of first degree murder with a finding that the crime was committed for the benefit of a criminal gang within the meaning of Penal Code section 186.22, subject to an enhancement of 10 years under section 186.22, subdivision (b)(1)(c) or a minimum parole eligibility term of 15 years section 186.22, subdivision (b)(5), which applies where the defendant is convicted of "a felon punishable by imprisonment in the state prison for life? Votes: George, C.J., Kennard, Baxter, Werdegar, Brown and Moreno, JJ.
Jan 9 2004Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Joseph Shipp 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.
Feb 4 2004Opening brief on the merits filed
  By Appellant {Jesus Lopez}.
Feb 4 2004Request for judicial notice filed (in non-AA proceeding)
  by appellant {Jesus Lopez} "Legislative History Materials"
Feb 4 2004Received:
  One volume of Appendices to Appellant's Rquest for Judicial Notice.
Mar 1 2004Request for extension of time filed
  to file respondent's brief, asking to April 4, 2004.
Mar 5 2004Extension of time granted
  To April 5, 2004 to file respondent's Answer Brief on the Merits. No further extensions are contemplated.
Apr 5 2004Answer brief on the merits filed
  AG/respondent.
Apr 16 2004Reply brief filed (case fully briefed)
  (CRC 40k/FedEx)
May 12 2004Compensation awarded counsel
  Atty Shipp
May 13 2004Received application to file Amicus Curiae Brief
  with brief under same cover -- supports respondent the people received from California District Attorneys Assoc., ["CDDA"]
May 19 2004Permission to file amicus curiae brief granted
  California District Attorneys Association in support of respondent.
May 19 2004Amicus curiae brief filed
  California District Attorneys Association in support of respondent. Answer is due within twenty days.
Jun 3 2004Response to amicus curiae brief filed
  By counsel for appellant {Jesus Lopez}.
Oct 4 2004Case ordered on calendar
  11/4/04 @ 1:30pm, Sacramento
Oct 26 2004Request for judicial notice granted
  Defendant's request for Judicial Notice, filed February 4, 2004.
Nov 4 2004Cause argued and submitted
 
Jan 6 2005Opinion filed: Judgment affirmed as modified
  the sentence must be modified to delete the 10-year gang enhancement imposed under Penal Code section 186.22(b)(1)(C). The cause is remanded to the Court of Appeal for further proceedings consistent with this opinion. Majority Opinion by Baxter, J. ----- Joined by George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ.
Jan 19 2005Compensation awarded counsel
  Atty Shipp
Feb 8 2005Remittitur issued (criminal case)
 
Feb 22 2005Received:
  Receipt for Remittitur from 2 DCA Div. 5.
Feb 25 2005Note:
  Record sent to L.A. office for 2 DCA. (2 Doghouses).

Briefs
Feb 4 2004Opening brief on the merits filed
 
Apr 5 2004Answer brief on the merits filed
 
Apr 16 2004Reply brief filed (case fully briefed)
 
May 19 2004Amicus curiae brief filed
 
Jun 3 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