IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
FERNANDO ROJAS,
Defendant and Appellant.
S275835
Fifth Appellate District
F080361
Kern County Superior Court
BF171239B
December 18, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Evans concurred.
PEOPLE v. ROJAS
S275835
Opinion of the Court by Liu, J.
In 2000, California voters adopted Proposition 21, the
Gang Violence and Juvenile Crime Prevention Act of 1998
(Proposition 21). Proposition 21 added the gang-murder special
circumstance, codified at Penal Code section 190.2, subdivision
(a)(22) (section 190.2(a)(22)). (All undesignated statutory
references are to the Penal Code.) Under this provision, a
person convicted of first degree murder is subject to the death
penalty or life imprisonment without the possibility of parole if
the jury finds “[t]he defendant intentionally killed the victim
while the defendant was an active participant in a criminal
street gang, as defined in subdivision (f) of Section 186.22, and
the murder was carried out to further the activities of the
criminal street gang.” (§ 190.2(a)(22), italics added.
Proposition 21 does not permit amendment of its provisions
except by the voters or by legislative amendment passed with a
two-thirds majority of each house. (Voter Information Guide,
Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 39, p. 131.
The definition of a “criminal street gang” in section 186.22,
subdivision (f) (section 186.22(f)) was first enacted in 1988 as
part of the California Street Terrorism Enforcement and
Prevention Act (STEP Act) (§ 186.20 et seq.), which created the
offense of active participation in a gang and introduced
sentencing enhancements for gang-related felonies. (Stats.
1988, ch. 1256, § 1, p. 4179; see Pen. Code, § 186.22, subds. (a),
(b)(2).) The Legislature has amended the definition of “criminal
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Opinion of the Court by Liu, J.
street gang” a few times over the years, generally expanding its
scope. But in 2021, the Legislature substantially narrowed
section 186.22(f)’s definition of “criminal street gang” and, by
extension, what it means to “further the activities of the
criminal street gang” for purposes of the special circumstance in
section 190.2(a)(22). (See Assembly Bill No. 333 (2021–2022
Reg. Sess.) (Assembly Bill 333).
The issue before us is whether applying this recent
legislative enactment, Assembly Bill 333, to the gang-murder
special circumstance in section 190.2(a)(22) constitutes an
unlawful amendment of Proposition 21. The issue has divided
the Courts of Appeal. (Compare People v. Rojas (2022) 80
Cal.App.5th 542, 557 [Assembly Bill 333’s amendments to
§ 186.22 cannot be applied to the gang-murder special
circumstance without taking away from the scope of conduct
made punishable under Proposition 21] with People v. Lee (2022
81 Cal.App.5th 232, 245, review granted and briefing deferred
Oct. 19, 2022, S275449 (Lee) [Assembly Bill 333 did not amend
Proposition 21, which was intended to track any subsequent
changes to § 186.22] and People v. Oliva (2023) 89 Cal.App.5th
76, 90, review granted and briefing deferred May 17, 2023,
S279485 [same].) We hold that the application of Assembly Bill
333 to the gang-murder special circumstance does not violate
the limitation on legislative amendment in Proposition 21.
I.
In 2019, Fernando Rojas and his codefendant Victor
Nunez were found guilty of deliberate, premeditated murder
(§ 187, subd. (a)) with true findings on the gang-murder special
circumstance (§ 190.2(a)(22)), a gang enhancement (§ 186.22,
subd. (b)(1)), and various firearm allegations (§§ 12022,
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Opinion of the Court by Liu, J.
subd. (d), 12022.53, subds. (d) & (e)). Nunez, a fellow gang
member, “shot and killed an individual with whom [Rojas] had
an altercation moments prior.” (Rojas, supra, 80 Cal.App.5th at
p. 546.) Rojas and Nunez were also found guilty of active
participation in a criminal street gang. (§ 186.22, subd. (a).
Based on the special circumstance finding, the trial court
sentenced Rojas to life imprisonment without the possibility of
parole, plus 25 years to life for the firearm enhancement.
In 2021, while Rojas’s appeal was pending, the Legislature
passed Assembly Bill 333, enacting the STEP Forward Act of
2021. (Stats. 2021, ch. 699, § 1.) “Assembly Bill 333 made the
following changes to the law on gang enhancements: First, it
narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three
or more persons.’ (§ 186.22, subd. (f), italics added.) Second,
whereas section 186.22, former subdivision (f) required only
that a gang’s members ‘individually or collectively engage in’ a
pattern of criminal activity in order to constitute a ‘criminal
street gang,’ Assembly Bill 333 requires that any such pattern
have been ‘collectively engage[d] in’ by members of the gang.
(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also
narrowed the definition of a ‘pattern of criminal activity’ by
requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date
that the currently charged offense is alleged to have been
committed; (2) the offenses were committed by two or more gang
‘members,’ as opposed to just ‘persons’; (3) the offenses
commonly benefitted a criminal street gang; and (4) the offenses
establishing a pattern of gang activity must be ones other than
the currently charged offense. (§ 186.22, subd. (e)(1), (2).
Fourth, Assembly Bill 333 narrowed what it means for an
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Opinion of the Court by Liu, J.
offense to have commonly benefitted a street gang, requiring
that any ‘common benefit’ be ‘more than reputational.’
(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169,
1206 (Tran); see People v. Cooper (2023) 14 Cal.5th 735, 738
[same].
In Tran, we held that Assembly Bill 333’s amendments to
section 186.22 apply retroactively to cases pending on appeal
under the rule of In re Estrada (1965) 63 Cal.2d 740. (Tran,
supra, 13 Cal.5th at pp. 1206–1207.) In light of Tran, the
Attorney General conceded below that Assembly Bill 333 applies
here and that because a reasonable jury could conclude that the
common benefit of the murder was based only on reputational
evidence, all the gang-based findings must be vacated, except for
the gang-murder special circumstance. (Rojas, supra, 80
Cal.App.5th at p. 546.) Accepting this concession, the Court of
Appeal reversed the gang enhancement and vicarious firearm
findings on Rojas’s murder conviction and his conviction of
active gang participation. (Ibid.) But the court also agreed with
the Attorney General that Assembly Bill 333 could not be
applied to the gang-murder special circumstance. (Rojas, at
pp. 550–558.
The Court of Appeal reasoned that Assembly Bill 333, as
applied to the gang-murder special circumstance, is
unconstitutional because it would “ ‘take[] away’ from the scope
of conduct that Proposition 21 made punishable under section
190.2” and was not passed by a supermajority vote. (Rojas,
supra, 80 Cal.App.5th at p. 555.) The court further explained
that Proposition 21’s increase in the punishment for certain
gang-related murders was “definitionally and conceptually
inseparable” from the gang conduct defined in section 186.22.
(Rojas, at p. 556.) Therefore, applying Assembly Bill 333’s
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Opinion of the Court by Liu, J.
revised definition of a criminal street gang to the gang-murder
special circumstance would be unconstitutional, even though
Assembly Bill 333 did not reduce the penalty established by
Proposition 21’s gang-murder special circumstance. (Rojas, at
p. 556.) The court concluded that “[t]he appropriate remedy is
not to void Assembly Bill 333 in its entirety, but rather to
disallow this unconstitutional application of Assembly Bill 333.”
(Id. at p. 557.
Justice Snauffer dissented on this issue, observing that
the voters who passed Proposition 21 were concerned only with
“increasing the punishment for certain gang-related murders,”
not with the underlying definition of any crime. (Rojas, supra,
80 Cal.App.5th at p. 561 (conc. & dis. opn. of Snauffer, J.).) In
his view, Proposition 21’s voters “ ‘got, and still have, precisely
what they enacted — stronger sentences for persons convicted
of [gang-related special-circumstance] murder.’ ” (Rojas, at
p. 560, quoting People v. Superior Court (Gooden) 42
Cal.App.5th 270, 289 (Gooden).
We granted review to decide whether Assembly Bill 333’s
application to the gang-murder special circumstance
unconstitutionally amends Proposition 21.
II.
“The Legislature may not amend an initiative statute
without subsequent voter approval unless the initiative permits
such amendment, ‘and then only upon whatever conditions the
voters
attached
to
the
Legislature’s
amendatory
powers.’ ” (People v. Superior Court (Pearson) (2010) 48 Cal.4th
564, 568 (Pearson); see Cal. Const., art. II, § 10, subd. (c).) “The
purpose of California’s constitutional limitation on the
Legislature’s power to amend initiative statutes is to ‘protect the
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Opinion of the Court by Liu, J.
people’s initiative powers by precluding the Legislature from
undoing what the people have done, without the electorate’s
consent.’ ” (Proposition 103 Enforcement Project v.
Quackenbush (1998) 64 Cal.App.4th 1473, 1484.
“We have described an amendment as ‘a legislative act
designed to change an existing initiative statute by adding or
taking from it some particular provision.’ [Citation.] But this
does not mean that any legislation that concerns the same
subject matter as an initiative, or even augments an initiative’s
provisions, is necessarily an amendment for these purposes.
‘The Legislature remains free to address a “ ‘related but distinct
area’ ” [citations] or a matter that an initiative measure “does
not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48
Cal.4th at p. 571.
“When we interpret an initiative, we apply the same
principles governing statutory construction. We first consider
the initiative’s language, giving the words their ordinary
meaning and construing this language in the context of the
statute and initiative as a whole. If the language is not
ambiguous, we presume the voters intended the meaning
apparent from that language, and we may not add to the statute
or rewrite it to conform to some assumed intent not apparent
from that language. If the language is ambiguous, courts may
consider ballot summaries and arguments in determining the
voters’ intent and understanding of a ballot measure.” (Pearson,
supra, 48 Cal.4th at p. 571.
A.
California voters enacted Proposition 21 in 2000,
increasing the penalties for certain gang-related felonies. As
relevant here, Proposition 21 created the gang-murder special
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circumstance, codified at section 190.2(a)(22). (People v.
Shabazz (2006) 38 Cal.4th 55, 65.) Section 190.2(a)(22
provides: “The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state
prison for life without the possibility of parole if one or more of
the following special circumstances has been found under
Section 190.4 to be true: [¶] . . . [¶] (22) 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.” By its terms,
Proposition 21 established a new penalty for murder committed
by an active participant in a criminal street gang in furtherance
of the gang’s activities, while relying on an existing statutory
provision — section 186.22(f) — to define “criminal street gang.”
An uncodified provision of Proposition 21 states that the
provisions of the initiative “shall not be amended by the
Legislature except by a statute passed in each house by rollcall
vote entered in the journal, two-thirds of the membership of
each house concurring, or by a statute that becomes effective
only when approved by the voters.” (Voter Information Guide,
Primary Elec., supra, text of Prop. 21, § 39, p. 131.) Assembly
Bill 333 did not receive two-thirds support in either house (Sen.
Daily J. (Sept. 1, 2021) p. 2284 [25 of 40 members voted in favor];
Assem. Daily J. (Sept. 8, 2021.) p. 2927 [41 of 80 members voted
in favor]; see Cal. Const., art. IV, § 2, subd. (a)(1)–(2)), nor was
the bill submitted to the voters for approval. The Attorney
General argues that Assembly Bill 333’s amendment of section
186.22, incorporated by reference into section 190.2(a)(22),
unconstitutionally amends Proposition 21 because the voters
intended the enhanced punishment of death or life without
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Opinion of the Court by Liu, J.
parole to apply to gang murders as defined at the time
Proposition 21 was enacted.
Although Proposition 21 amended section 186.22 by
increasing the punishment of certain enhancements (§ 186.22,
subds. (b), (c), (d)) and adding predicate offenses in determining
“a pattern of criminal gang activity” (id., subd. (e)), the 2000
initiative did not amend section 186.22(f)’s definition of
“criminal street gang” and instead technically reenacted it
without substantive change. (See County of San Diego v.
Commission on State Mandates (2018) 6 Cal.5th 196, 209–210
[“Statutory provisions that are not actually reenacted and are
instead considered to ‘ “have been the law all along” ’ [citation]
cannot fairly be said to be part of a ballot measure”]; Gov. Code,
§ 9605.) It follows that the Legislature is free to revise section
186.22(f) independent of the supermajority requirement in
Proposition 21 itself unless the reenacted provision “is integral
to accomplishing the electorate’s goals in enacting the initiative
or other indicia support the conclusion that voters reasonably
intended to limit the Legislature’s ability to amend that part of
the statute.” (County of San Diego, at p. 214; see also Lee, supra,
81 Cal.App.5th at p. 242, rev.gr.; cf. Cal. Const., art. II, § 10,
subd. (c); Voter Information Guide, Primary Elec., supra, text of
Prop. 21, § 39, p. 131.
The Attorney General argues that applying Assembly Bill
333’s amendment to section 186.22(f) to a special circumstance
allegation would frustrate the voters’ intent to “lock in” the
definition of “criminal street gang” as it existed at the time of
the 2000 election and would “take away” from the purpose of
Proposition 21. We address these arguments in turn.
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B.
We begin with the text of the initiative statute. We have
said that “ ‘where a statute adopts by specific reference the
provisions of another statute, regulation, or ordinance, such
provisions are incorporated in the form in which they exist at
the time of the reference and not as subsequently modified, and
that the repeal of the provisions referred to does not affect the
adopting statute, in the absence of a clearly expressed intention
to the contrary.’ ” (Palermo v. Stockton Theatres (1948) 32
Cal.2d 53, 58–59 (Palermo); see generally Jam v. International
Finance Corp. (2019) 586 U.S. __, __ [139 S.Ct. 759, 769]
[referring to this principle of statutory construction as the
“ ‘reference’ canon”].) At the same time, “ ‘there is a cognate
rule . . . to the effect that where the reference is general instead
of specific, such as a reference to a system or body of laws or to
the general law relating to the subject in hand, the referring
statute takes the law or laws referred to not only in their
contemporary form, but also as they may be changed from time
to time . . . .’ ” (Palermo, at p. 59.
While Palermo sets forth the general rule above, it also
makes clear that the presence or absence of language referring
specifically to a statutory or regulatory provision is not
necessarily dispositive. At issue in Palermo was the California
Alien Land Act (Stats. 1921, p. lxxxiii, as amended by Stats.
1923, p. 1021), which referred to “ ‘ “any treaty now existing” ’ ”
at the time of the act’s enactment by the electorate. (Palermo,
supra, 32 Cal.2d at p. 59.) Palermo reasoned that “in view of the
fact that there is grave doubt whether our Legislature could
constitutionally delegate to the treaty-making authority of the
United States the right and power thus directly to control our
local legislation with respect to future acts [citations], we are
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Opinion of the Court by Liu, J.
constrained to hold that the reference is specific and not
general’ ” (id. at pp. 59–60), even though the act did not refer to
any specific treaty. We have observed that “[s]everal modern
decisions have applied the Palermo rule, but none have done so
without regard to other indicia of legislative intent.” (In re
Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10 (Jovan B.); see id. at
p. 816 [“ ‘the determining factor will be . . . legislative intent’ ”].
Our application of the Palermo rule in Jovan B. is
instructive. In that case, we considered legislation that
incorporated by reference a provision of the Uniform
Determinate Sentencing Act (§ 1170 et seq.), commonly referred
to as the determinate sentencing law (DSL), into section 726 of
the Welfare and Institutions Code as a basis for calculating a
juvenile’s maximum time of confinement or commitment. The
question was whether the Legislature intended to lock in the
provisions of the DSL in effect at the time. (Jovan B., supra, 6
Cal.4th at pp. 815–816.) We concluded that it did not and held
that a juvenile’s maximum time of confinement or commitment
takes into account enhanced penalties incorporated into the
DSL after Welfare and Institutions Code section 726 was
enacted. (Jovan B., at pp. 816, 820.) We explained that
although the statute referred to two specific provisions of the
DSL (§ 1170, subd. (a)(2) and § 1170.1, subd. (a)) those
provisions merely “stated the general rule that when sentencing
a felon to prison, the court must impose either the upper,
middle, or lower term provided for the offense at issue, plus ‘any
other . . . additional term’ required or permitted by law in the
individual case.” (Jovan B., at p. 818.) “Thus, in the language
of Palermo, supra, 32 Cal.2d 53, 58–59, Welfare and Institutions
Code section 726’s reference to Penal Code sections 1170,
subdivision (a)(2) and 1170.1, subdivision (a) is not a ‘specific
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Opinion of the Court by Liu, J.
reference [to] the provisions of another statute,’ but rather is a
‘general’ reference ‘to a system or body of laws.’ ” (Jovan B., at
p. 819.
Jovan B. went on to consider the purpose of the
amendment of Welfare and Institutions Code section 726, which
“states a broad general rule that the ‘maximum term of
imprisonment’ for juvenile confinement purposes includes
‘enhancements’ if they are pled and proven.” (Jovan B., supra,
6 Cal.4th at p. 819.) “The obvious purpose . . . was ‘to treat adult
and juvenile offenders on equal footing as far as the [maximum]
duration of their incarceration is concerned’ [citation], whatever
that period might be at the moment.” (Ibid.) We concluded:
“The Legislature cannot have anticipated that in order to
preserve this equality over time, it would be forced to
amend section 726 each and every time it altered the DSA.”
(Ibid.) In light of this determination, we held that the juvenile
was subject to the special allegation under Penal Code section
12022.1 that he had committed the offense in question while out
of custody pending trial on a prior petition, even though that
provision of the Penal Code was enacted five years after Welfare
and Institutions Code section 726. (Jovan B., at pp. 807–808,
815.
Here, as in Jovan B., the words of the incorporating
statute “do not make clear whether it contemplates only a time-
specific incorporation.” (Jovan B., supra, 6 Cal.4th at p. 816.
The initiative’s uncodified findings and declarations state:
“Gang-related crimes pose a unique threat to the public because
of gang members’ organization and solidarity. Gang-related
felonies should result in severe penalties. Life without the
possibility of parole or death should be available for murderers
who kill as part of any gang-related activity.” (Voter
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Opinion of the Court by Liu, J.
Information Guide, Primary Elec., supra, text of Prop. 21, § 2,
subd. (h), p. 119.) To that end, the electorate chose to impose a
specific punishment for gang-related murder while relying on
the generally applicable definition of “criminal street gang” in
section 186.22(f). The voters gave no indication in the statute
that they intended to adopt the definition of “criminal street
gang” in effect at the time. Like the statutory references in
Jovan B., the reference to section 186.22(f)’s definition of
“criminal street gang” in Proposition 21 is readily understood as
a reference “to the general law relating to the subject in hand,”
and as such, “the referring statute takes the law . . . referred to
not only in [its] contemporary form, but also as [it] may be
changed from time to time.” (Palermo, supra, 32 Cal.2d at p. 59.
The Attorney General argues that the provisions at issue
in Jovan B. are “materially different” from those at issue here
because Proposition 21 refers “to a specific code section and
subdivision defining a particular term” in contrast to the
“general incorporation of an entire body or system of laws as in
Jovan B.” But section 186.22(f) sets forth the definition of
“criminal street gang” that is applied throughout the STEP Act
and other parts of the Penal Code. For example, the general
definition of “ ‘[o]rganized crime’ ” in section 186.2, subdivision
(d) was amended in 1996 to “also mean[] crime committed by a
criminal street gang, as defined in” section 186.22(f). (Stats.
1996, ch. 844, § 1, p. 4465.) The penalty for knowingly
supplying, selling, or giving possession or control of a firearm
with the knowledge that the person will use it to commit a felony
for the benefit of a gang, enacted in 1992, also relies on the
definition of “criminal street gang” in section 186.22(f).
(§ 186.28, subd. (a)(1); see Stats. 1992, ch. 370, § 1, p. 1405.) So,
too, does the provision for motor vehicle forfeiture when a
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member of a criminal street gang is convicted of the unlawful
possession of a firearm while present in a vehicle, as amended
in 1993. (§ 246.1, subd. (a); see Stats. 1994, 1st Ex. Sess., ch. 33,
§ 1, p. 8659.) Since 1994, the Welfare and Institutions Code has
also relied on section 186.22 to define “criminal street gang” in
providing for information-sharing among “members of a juvenile
justice multidisciplinary team engaged in the prevention,
identification, and control of crime, including, but not limited to
criminal street gang activity.” (Welf. & Inst. Code, § 830.1; see
Stats. 1994, 1st Ex. Sess., ch. 24, § 1, p. 8597.) Each of these
provisions was in place prior to the enactment of Proposition 21,
and we presume the voters were aware of the generally
applicable nature of section 186.22(f)’s definition of “criminal
street gang” when they enacted Proposition 21. (Professional
Engineers in California Government v. Kempton (2007) 40
Cal.4th 1016, 1048 (Professional Engineers) [“The voters are
presumed to have been aware of existing laws at the time the
initiative was enacted.”].
Of course, it is the electorate’s prerogative to give the term
“criminal street gang” a fixed meaning if it chooses, regardless
of how the Legislature may subsequently define the term. But
the voters who enacted Proposition 21 did not specify that the
cross-reference to section 186.22(f) was intended to lock in the
contemporary definition, and this omission is particularly
salient in light of other aspects of the same enactment that did
just that.
Sections 14 and 16 of Proposition 21 amended portions of
the existing “Three Strikes Law.” Section 14 added section
667.1 to the Penal Code: “Notwithstanding subdivision (h) of
Section 667, for all offenses committed on or after the effective
date of this act, all references to existing statutes in subdivisions
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Opinion of the Court by Liu, J.
(c) to (g), inclusive, of Section 667, are to those statutes as they
existed on the effective date of this act, including amendments
made to those statutes by this act.” (Voter Information Guide,
Primary Elec., supra, text of Prop. 21, § 14, p. 123, italics
omitted.) Similarly, section 16 added section 1170.125 to the
Penal Code: “Notwithstanding Section 2 of Proposition 184, as
adopted at the November 8, 1994 General Election, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in Section 1170.12 are to those
statutes as they existed on the effective date of this act,
including amendments made to those statutes by this act.”
(Voter Information Guide, Primary Elec., supra, text of Prop. 21,
§ 16, p. 124, italics omitted.
Sections 14 and 16, by their terms, “change[d] the ‘lock-in’
date for determining the existence of qualifying offenses (such
as violent or serious felonies) under the Three Strikes law.
Thus, before the passage of Proposition 21, references to existing
statutes, such as the law defining violent felonies, in Penal Code
section 667 were ‘to statutes as they existed on June 30, 1993.’
(§ 667, subd. (h).) Section 14 of Proposition 21 provides that
references to existing statutes in Penal Code section 667, for all
offenses committed on or after the effective date of the initiative,
are to those statutes as they existed on the effective date of
Proposition 21 (March 8, 2000), including, but not limited to,
amendments made to those statutes by this initiative. (§ 667.1.
Section 16 of the initiative makes a corresponding change to the
lock-in date for statutes referenced in Penal Code section
1170.12. (§ 1170.125.)” (Manduley v. Superior Court (2002) 27
Cal.4th 537, 574–575.
The Attorney General says these provisions “were
necessary to convey the electorate’s intent that sections 667 and
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Opinion of the Court by Liu, J.
1170.12, which Proposition 21 did not directly amend, were to
implement the initiative’s amendments to other statutes that
sections 667 and 1170.12 referenced and which Proposition 21
did amend.” But if the voters’ intent was simply to ensure that
the cross-referenced list of violent felonies included those
updated by Proposition 21, then the phrase “including
amendments made to those statutes by this act” in both section
14 and section 16 would have sufficed. Instead, the voters
coupled that directive with a reference to “those statutes as they
existed on the effective date of this act,” thus ensuring that
future offenses would be classified in accordance with the
scheme then existing. The Attorney General’s explanation of
sections 14 and 16 does not account for why those provisions are
written as they are.
In People v. Fletcher (2023) 92 Cal.App.5th 1374, 1379–
1382, review granted September 20, 2023, S281282, the Court
of Appeal held that the narrower definition of “criminal street
gang” in Assembly Bill 333 cannot be applied to determine what
constitutes a serious felony for purposes of the Three Strikes
Law without running afoul of the limits on legislative
amendment set forth in both Proposition 21 and a 2012
initiative, Proposition 36 (Prop. 36, as approved by voters, Gen.
Elec. (Nov. 6, 2012)). We do not decide that issue here. We
simply observe that the text of Proposition 21 shows the voters
understood that cross-referenced statutes may evolve, and they
knew how to lock in the meaning of a cross-referenced statute.
Yet the voters chose not to do so with respect to the gang-murder
special circumstance. (Cf. Pasadena Police Officers Assn. v. City
of Pasadena (1990) 51 Cal.3d 564, 576 [“When the Legislature
‘has employed a term or phrase in one place and excluded it in
another, it should not be implied where excluded.’ ”].
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C.
The Attorney General’s primary argument is that
application of Assembly Bill 333 would frustrate the voters’
intent by narrowing the scope of conduct covered by the gang-
murder special circumstance, thereby “taking away” from
Proposition 21. In this context, we have described an
amendment as “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.) To
determine whether Assembly Bill 333 impermissibly takes away
from Proposition 21, “we must decide what the voters
contemplated.” (Pearson, supra, 48 Cal.4th at p. 571; see
Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [“the voters
should get what they enacted, not more and not less”].
The Attorney General says application of Assembly Bill
333 here conflicts “with the electorate’s manifest intent to
substantially augment protections against violent gang crime,
including by punishing more harshly ‘murderers who kill as part
of any gang-related activity’ [(Prop. 21, § 2, subd. (h))].” He
adds, “It would be strange, in light of that intent, to conclude
that the electorate also understood that the Legislature was free
to narrow — in potentially significant ways — the scope of the
protections that Proposition 21 established.” But the phrase
“any gang-related activity” in Proposition 21 simply begs the
question of what the voters intended “gang-related activity” to
mean; it does not indicate that the voters wanted to lock in the
then-current definition. The voters chose to define the term
“criminal street gang” by reference to the existing statute,
section 186.22(f), which had been amended several times by the
Legislature before Proposition 21. In so doing, the voters
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Opinion of the Court by Liu, J.
incorporated a definition that they knew was both changeable
and had been repeatedly subject to change.
As originally enacted, the STEP Act defined “criminal
street gang” to mean “any ongoing organization, association, or
group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or
more of the criminal acts enumerated in paragraphs (1) to (7),
inclusive, of subdivision (c), which has a common name or
common identifying sign or symbol, whose members
individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (Former § 186.22, subd. (d),
added by Stats. 1988, ch. 1256, § 1, p. 4181.) That definition has
been amended over the years, both before and after the
enactment of Proposition 21. After being recodified in 1991 at
section 186.22(f), the definition of “criminal street gang” was
expanded in 1993 and 1994 to incorporate additional
enumerated predicate offenses. (See Stats. 1993, ch. 601, § 1,
p. 3161; Stats. 1993, ch. 1125, § 3, p. 6291; Stats. 1994, ch. 47,
§ 1, p. 390, eff. Apr. 19, 1994.) Similarly, Proposition 21 added
two crimes to the list of predicate offenses and incorporated
those into the definition of “criminal street gang.” (Prop. 21, § 4
[amending § 186.22, subds. (e), (f)].) The definition of “criminal
street gang” has continued to evolve after Proposition 21, in
ways that both expand (see Stats. 2006, ch. 596, § 1, p. 4932
[amending § 186.22(f) to incorporate an expanded list of
enumerated offenses]) and contract (see Assem. Bill 333) that
definition. The voters who enacted Proposition 21 knew that the
definition of “criminal street gang” was changeable (see
Professional Engineers, supra, 40 Cal.4th at p. 1048 [we
presume voters are “aware of existing laws at the time the
initiative was enacted”]), and there is no indication they
17
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Opinion of the Court by Liu, J.
intended to foreclose future changes to the definition or to allow
only expansion and not contraction of the definition.
Rather, when the voters adopted Proposition 21 twelve
years after the STEP Act was first enacted, they made clear that
their purpose was to more severely punish crimes that are gang-
related as opposed to crimes that are not gang-related. As noted,
the text declares 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.” (Voter Information Guide,
supra, text of Prop. 21, § 2, subd. (h), p. 119.) The proponents of
Proposition 21 emphasized its focus on stronger penalties for
criminal activity by gangs and gang members, explaining that
current law “must be strengthened to require serious
consequences” in order to protect people “from the most violent
juvenile criminals and gang offenders.” (Voter Information
Guide, argument in favor of Prop. 21, p. 48, italics omitted.
Proponents further argued 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.” (Ibid.) Nowhere
do the arguments in favor of the initiative suggest that the act
would redefine or lock in the then-existing definition of
“criminal street gang” rather than incorporate a definition that
had been and continued to be subject to change.
The purpose of Assembly Bill 333 further confirms that its
application here poses no inconsistency with the voters’ intent
in enacting Proposition 21. By the time the Legislature took up
Assembly Bill 333 in 2021, California had more than three
decades of experience under the STEP Act. The Legislature was
motivated by that experience to narrow the definition of
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Opinion of the Court by Liu, J.
criminal street gang in order to focus on “true gang-related
crimes,” having determined that “in practice the original
definition of a criminal street gang was not narrowly focused on
punishing true gang-related crimes.” (Lee, supra, 81
Cal.App.5th at p. 245, rev.gr.) Assembly Bill 333 did not change
the punishment associated with gang crimes, including the
punishment of death or life without the possibility of parole for
individuals convicted of the gang-murder special circumstance.
Instead, consistent with the intent of Proposition 21 to severely
punish gang-related crimes, the Legislature in Assembly Bill
333 “redefined the term ‘criminal street gang’ so as to truly
target the population of criminals for which an enhanced
punishment is warranted.” (Lee, at p. 245; see Assem. Com. on
Public Safety, Analysis of Assem. Bill 333, as amended Mar. 30,
2021, p. 4 [Assembly Bill 333 “ ‘ensur[es] gang enhancements
are only used when necessary and fair’ ”].
The Attorney General argues that this case is similar to
People v. Kelly (2010) 47 Cal.4th 1008, where we considered
whether an aspect of the legislatively enacted Medical
Marijuana Program (MMP) impermissibly amended the
Compassionate Use Act enacted by the voters. The
Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5
et seq.) permitted individuals to possess and cultivate limited
quantities of marijuana reasonably for “personal medical
purposes” (id., § 11362.5, subd. (d)) and provided a
corresponding affirmative defense to criminal prosecution, but
it did not impose specific quantity limits. (Kelly, at p. 1013.
The MMP did not amend the specific statutes enacted by the
voters, but it did impose other restrictions, including quantity
limits on the affirmative defense. We found this to be an
unconstitutional amendment of the voter initiative because the
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Opinion of the Court by Liu, J.
Legislature would “take[] away from rights granted by the
initiative statute,” which “guarantee[d] that a qualified patient
may possess and cultivate any amount of marijuana reasonably
necessary for his or her current medical condition.” (Kelly, at
p. 1043.
Unlike the legislation at issue in Kelly, Assembly Bill 333
does not intrude upon the purpose of Proposition 21. The
purpose of Proposition 21 was to heighten the penalties for gang
activity and other violent crimes. While narrowing the
definition of “criminal street gang,” Assembly Bill 333 does not
change the punishment for those convicted of the gang-murder
special circumstance. (See Lee, supra, 81 Cal.App.5th at p. 244,
rev.gr. [applying Assembly Bill 333 here “does not change the
punishment for ‘murderers who kill as part of any gang-related
activity,’ the relevant purpose of Proposition 21”].
Gooden, supra, 42 Cal.App.5th 270, is instructive on this
point. There, the Court of Appeal held that Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437), which amended the
mens rea for murder was not an impermissible amendment of
Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7,
1978)) (Proposition 7), which increased the punishment for
murder, or Proposition 115 (Prop. 115, as approved by voters,
Primary Elec. (June 5, 1990)), which expanded the list of
predicate offenses for the felony-murder rule. Gooden rejected
the Attorney General’s argument that Senate Bill 1437
amended Proposition 7 by taking away from the scope of conduct
that constitutes murder punishable by the increased
punishments specified in the initiative. (Gooden, at p. 281.) The
court emphasized that “the elements of an offense and the
punishment for an offense plainly are not synonymous.” (Ibid.
Whereas Proposition 7 addressed the punishment for murder,
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Opinion of the Court by Liu, J.
Senate Bill 1437 addressed only the mental state required to
commit murder. (Gooden, at p. 282.) “Senate Bill 1437 did not
address the same subject matter” as Proposition 7; rather, it
“presents a classic example of legislation that addresses a
subject related to, but distinct from, an area addressed by an
initiative.” (Gooden, at p. 282; accord, People v. Nash (2020) 52
Cal.App.5th 1041, 1059 [“While the class of individuals standing
convicted of murder may be reduced in light of Senate Bill
No. 1437’s changes to the felony-murder rule and the natural
and probable consequences doctrine, the legislation does not
change or take away from the sentences those convicted of
murder are subject to, which is the mandate of Proposition 7.”].
Gooden’s distinction between the electorate’s focus on
punishment and the Legislature’s focus on the substantive
elements of an offense applies here. The voters who enacted
Proposition 21 wanted to harshly punish the members and
activities of a “criminal street gang,” but there is no indication
that the voters had in mind a fixed meaning of the term. Murder
committed by “an active participant in a criminal street gang”
in order to “further the activities of the criminal street gang”
(§ 190.2(a)(22)) is still punishable by death or life imprisonment
without the possibility of parole, as provided by Proposition 21.
The statutory amendments enacted by Assembly Bill 333 ensure
that punishment is not imposed in other circumstances.
The Attorney General further notes that on several prior
occasions in which the Legislature amended portions of section
186.22, the Legislative Counsel advised that the amendment
required approval by two-thirds of each house. (See Legis.
Counsel’s Dig., Sen. Bill No. 444 (2005–2006 Reg. Sess.) 4 Stats.
2005, ch. 482, Summary Dig., p. 235 [“Existing law authorizes
the Legislature to amend these provisions with a 2/3 vote of each
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Opinion of the Court by Liu, J.
house.”]; Legis. Counsel’s Dig., Sen. Bill No. 1222 (2005–2006
Reg. Sess.) 6 Stats. 2006, ch. 596, Summary Dig., p. 333 [same].
But “the Legislature’s views regarding the legality of its
enactments are not binding on the judiciary.” (People v. Lopez
(2022) 82 Cal.App.5th 1, 21, fn. 5; see Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 244.) In any event, “ ‘[t]he
Legislature remains free to address a “ ‘related but distinct
area’ ” [citations] or a matter that an initiative measure “does
not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48
Cal.4th at p. 571.
Finally, we observe that the Attorney General does not
argue against application of the amended definition of “criminal
street gang” in all contexts, but only when applied to the gang-
murder special circumstance. On this view, the narrower
definition of Assembly Bill 333 would apply in all other
circumstances, effectively making it easier to prove gang
allegations for the purposes of imposing the death penalty or life
imprisonment without the possibility of parole, and more
difficult to impose the less serious consequences that flow from
violations of section 186.22 itself. As one court has observed,
“[i]t is difficult to discern a rational reason for such an
anomalous choice.” (Lee, supra, 81 Cal.App.5th at p. 242,
rev.gr.
D.
The Attorney General relies on three cases applying the
Palermo rule, but none supports a different result here. First,
the Attorney General says the specific reference in Proposition
21 to section 186.22(f) is comparable to the specific reference in
Vehicle Code section 23152 to subdivisions (a) through (f) of
section 835.6 of the Penal Code, which were held to be time-
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Opinion of the Court by Liu, J.
specific in People v. Domagalski (1989) 214 Cal.App.3d 1380
(Domagalski). The Attorney General notes that Domagalski
synthesized the following rule from intervening cases applying
Palermo: “ ‘Without exception, in each case where a statute, or
some portion of it, was incorporated by reference to its section
designation, the court found the reference to be specific and the
effect was the same as if the adopted statute had been set out
verbatim in the adopting statute, so that repeal or subsequent
modification of the statute referred to [and] did not affect the
adopting statute. Only in those cases where an entire body of
law relating to a particular subject was adopted by reference did
the court find the reference to be general so that subsequent
amendments to the incorporated statute affected the adopting
statute.’ ” (Domagalski, at pp. 1385–1386, fn. omitted.
It is true that Proposition 21, like the statute at issue in
Domagalski, refers to a specific subdivision of section 186.22 to
define “criminal street gang.” That subdivision, however,
contains the entirety of the Penal Code’s definition of “criminal
street gang,” whereas the referenced subdivisions of section
835.6 contain only a portion of the potentially relevant
misdemeanor procedures that the Legislature could have chosen
to incorporate into Vehicle Code section 23152 but did not.
Domagalski also confirms that “the determining factor will be
the legislative intent behind the incorporating statute,” which
may be assessed through the legislative history. (Domagalski,
supra, 214 Cal.App.3d at p. 1386.) We endorsed the latter point
in Jovan B., including Domagalski among other “modern
decisions” that “have applied the Palermo rule” while noting
that “none have done so without regard to other indicia of
legislative intent.” (Jovan B., supra, 6 Cal.4th at p. 816, fn. 10.
Domagalski is consistent with our analysis above.
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Opinion of the Court by Liu, J.
The same is true of In re Oluwa (1989) 207 Cal.App.3d 439
(Oluwa), in which the Court of Appeal considered whether an
inmate was subject to the custody credit calculation established
by the voters through Proposition 7 or whether he was entitled
to invoke more generous credit provisions later enacted by the
Legislature. Proposition 7 contained a statement that “ ‘[t]he
provisions of Article 2.5 (commencing with Section 2930) of
Chapter 7 of Title 1 of Part 3 of the Penal Code [article 2.5] shall
apply’ ” in calculating custody credit for sentences like the
inmate’s in Oluwa. (Oluwa, at p. 442.) As described in Oluwa,
article 2.5 contained three sections governing custody credit
calculation at the time Proposition 7 was passed; the custody
credits at issue were enacted as separate sections of article 2.5.
(Oluwa, at p. 443.
The Attorney General points to Oluwa’s statement that
Proposition 7 was “not a reference to a system or body of laws or
to the general law relating to the subject at hand,” but rather
was “a specific and pointed reference to an article of the Penal
Code . . . at the time Proposition 7 incorporated article 2.5 into
section 190.” (Oluwa, supra, 207 Cal.App.3d at p. 445.) But
Oluwa did not rest on a specific reference to article 2.5; rather,
the court emphasized that the accompanying legislative
analysis “advised voters that those persons sentenced to 15
years to life in prison would have to serve a minimum of 10 years
before becoming eligible for parole” as provided in article 2.5 at
the time Proposition 7 was adopted. (Oluwa, at p. 445.) Oluwa
explained that allowing inmates like Oluwa to benefit from
subsequent amendments that would reduce that minimum
specifically presented to the voters would frustrate the voters’
intent and constitute an impermissible legislative amendment
of the initiative. (Id. at p. 446.) Here, by contrast, we have no
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Opinion of the Court by Liu, J.
similar representation in the ballot materials accompanying
Proposition 21 that applies or even mentions a specific definition
of “criminal street gang,” and thus no basis to infer that the
voters intended to lock in such a definition.
The Attorney General also cites People v. Anderson (2002
28 Cal.4th 767, which concerned the proper interpretation of
section 26, a statute precluding duress as a defense to crimes
“punishable with death.” When section 26’s predecessor was
first enacted, this category of crimes included all forms of
murder. The defendant argued that because only first degree
murder with special circumstances is so punishable today,
duress should constitute a defense to all forms of murder except
first degree murder with special circumstances. (Anderson, at
p. 773.) In other words, the defendant argued that the reference
to crimes “punishable with death” in section 26 was general and
therefore evolves with the changing nature of what constitutes
a capital offense. After considering various indicia of legislative
intent and the “anomalous[]” and “random results” that would
result from the defendant’s position, we held that duress is “not
a defense to any form of murder” and that the reference in
section 26 was specific. (Anderson, at pp. 775, 780; see id. at
pp. 774–778.
The Attorney General says “the reference [in Proposition
21] is even more specific than the reference at issue in
Anderson.” This argument appears to draw the wrong lesson
from Anderson. Anderson illustrates that a statutory reference
that appears to be general can, upon inquiry into legislative
intent, turn out to be specific. This case shows the reverse also
can be true: the statutory reference in section 190.2 may appear
specific, but the relevant indicia of voter intent show that the
reference is general.
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Opinion of the Court by Liu, J.
We conclude that applying Assembly Bill 333’s definition
of “criminal street gang” to the gang-murder special
circumstance does not unconstitutionally amend section
190.2(a)(22). Accepting, as did the Court of Appeal, the Attorney
General’s concession below that the evidence presented at trial
is not sufficient to sustain the gang allegations under Assembly
Bill 333, we vacate the true finding on the gang-murder special
circumstance in this case.
CONCLUSION
We reverse the judgment below and remand for further
proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
26
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Rojas
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 80 Cal.App.5th 542
Review Granted (unpublished)
Rehearing Granted
Opinion No. S275835
Date Filed: December 18, 2023
Court: Superior
County: Kern
Judge: John W. Lua
Counsel:
Sharon G. Wrubel, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Michael P. Farrell and Susan
Sullivan Pithey, Assistant Attorneys General, Dana Muhammad Ali,
Idan Ivri, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi,
Amanda D. Cary, William K. Kim and Stacy S. Schwartz, Deputy
Attorneys General, for Plaintiff and Respondent.
Kent S. Scheidegger and Kymberlee C. Stapleton for the Criminal
Justice Legal Foundation as Amicus Curiae on behalf of Plaintiff and
Respondent.
Gregory D. Totten for the California District Attorneys Association as
Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Sharon G. Wrubel
Attorney at Law
P.O. Box 1240
Pacific Palisades, CA 90272
(310) 459-4689
Stacy S. Schwartz
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 269-6099
Opinion Information
| Date: | Docket Number: |
| Mon, 12/18/2023 | S275835 |
