People v. Rojas

15 Cal.5th 561

539 P.3d 468

316 Cal.Rptr.3d 61

The PEOPLE, Plaintiff and Respondent,

v.Fernando ROJAS, Defendant and Appellant.

S275835

Supreme Court of California.

December 18, 2023

Sharon G. Wrubel, Pacific Palisades, 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, Ventura, for the California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

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 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, 296 Cal.Rptr.3d 104 [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, 296 Cal.Rptr.3d 499, 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, 305 Cal.Rptr.3d 414, 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, 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, 296 Cal.Rptr.3d 104.) 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 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, 298 Cal.Rptr.3d 150, 515 P.3d 1210 ( Tran ); see People v. Cooper (2023) 14 Cal.5th 735, 738, 308 Cal.Rptr.3d 409, 529 P.3d 66 [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, 48 Cal.Rptr. 172, 408 P.2d 948. ( Tran , supra , 13 Cal.5th at pp. 1206–1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210.) 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, 296 Cal.Rptr.3d 104.) 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, 296 Cal.Rptr.3d 104.)

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, 296 Cal.Rptr.3d 104.) 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, 296 Cal.Rptr.3d 104.) Therefore, applying Assembly Bill 333's 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, 296 Cal.Rptr.3d 104.) 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, 296 Cal.Rptr.3d 104.)

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, 296 Cal.Rptr.3d 104 (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, 296 Cal.Rptr.3d 104, quoting People v. Superior Court (Gooden) 42 Cal.App.5th 270, 289, 255 Cal.Rptr.3d 239 ( 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, 107 Cal.Rptr.3d 265, 227 P.3d 858 ( Pearson ); see Cal. Const., art. II, § 10, subd. (c).) "The purpose of California's...