People v. Lopez ( 2022 )

Filed 8/3/22; Opinion on transfer from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076295
Plaintiff and Respondent,
(Super. Ct. No. VCF325028TT)
v.
PEDRO LOPEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian,† Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E.
Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman, Julie A. Hokans, Christopher J. Rench, and Darren K.
Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II.D., and III through V.
†Retired judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Pedro Lopez (defendant) was one of several Norteño gang members found guilty
of conspiring to commit two home invasion robberies. Law enforcement agencies were
already conducting a wiretapping operation when the conspiracy began to develop. As a
result, the perpetrators were apprehended while driving to the targeted homes and the
robberies were never committed. Defendant appeals from a judgment of conviction on
counts of unlawful possession of a firearm and ammunition; attempted robbery;
conspiracy to commit robbery; and a violation of the gang conspiracy statute, Penal Code
section 182.5 (all undesignated statutory references are to the Penal Code). The
judgment also includes gang enhancements imposed under section 186.22, subdivision
(b)(1).
In a previously issued opinion, we evaluated defendant’s claims of insufficient
evidence, instructional error, and sentencing error. In particular, defendant’s challenge to
the imposition of a life sentence for conspiracy to commit home invasion robbery was
rejected. The California Supreme Court later granted review as to one issue: whether the
trial court erred by sentencing defendant to the alternate penalty prescribed by section
186.22, subdivision (b)(4) based on gang-related conspiracy convictions. Holding the
alternate penalty of a life term does not apply to such convictions, the high court reversed
our prior decision “with instructions to remand for resentencing.” (People v. Lopez
(2022) 12 Cal.5th 957, 976.)
While the matter was pending before the high court, the Legislature enacted
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333). This legislation
amended multiple parts of section 186.22 and added a new statute, section 1109. Section
1109 provides for bifurcated trial procedures in cases involving gang charges under
section 186.22, subdivisions (a), (b), and/or (d). The California Supreme Court declined
to consider whether or to what extent Assembly Bill 333 applies to defendant’s case,
“leav[ing] the subject for consideration by the Court of Appeal on remand.” (People v.
Lopez, supra, 12 Cal.5th at p. 976, fn. 12.)
2.
In supplemental briefing, defendant argues the recent amendments to section
186.22 apply retroactively. Because the gang conspiracy statute incorporates provisions
of section 186.22 to define the elements of the offense, defendant contends Assembly Bill
333 requires reversal of the gang enhancements and his conviction under section 182.5.
Defendant also claims section 1109 applies retroactively. Therefore, pursuant to a theory
the gang evidence tainted all of the jury’s verdicts, defendant argues for reversal of the
entire judgment and “a new trial in which trial on the gang conspiracy count and gang
enhancement allegations is bifurcated from the trial on the other counts.”
The People contend Assembly Bill 333 applies retroactively only in relation to
section 186.22, not section 1109, and has no application to the gang conspiracy statute.
They argue that construing Assembly Bill 333 as having any effect on section 182.5
would constitute a prohibited amendment to a law enacted by voter initiative. We find
the argument unsound and hold Assembly Bill 333’s amendments to section 186.22,
subdivisions (e) and (f), lawfully apply to the gang conspiracy statute.
There is a split of authority on the retroactive application of section 1109.
Whether section 1109 applies to section 182.5, retroactively or otherwise, would be an
issue of first impression. It is unnecessary to reach either issue because any arguable
error in failing to bifurcate the gang charges was nonprejudicial. We affirm in part,
reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s evidence showed, under the law predating Assembly Bill 333, that
the Norteños are a criminal street gang with members located throughout the Central
Valley of California. Defendant was affiliated with a Norteño “subset” in Fresno County
called Varrio East Side Reedley. Gang members from other subsets or “cliques” also
participated in the underlying events, and there are no issues regarding the perpetrators’
common ties to an overarching criminal enterprise.
3.
In 2015, multiple law enforcement agencies conducted a joint investigation into
the activities of Norteño gang members in Tulare County. Operation Red Sol involved
the wiretapping of phones used by certain high-ranking members, including Emanuel
Avalos, Rigoberto Benavidez, and Pedro Sanchez. Sanchez held the position of
“regiment commander” and was considered “the boss of Tulare County.” Avalos lived in
Lindsay and held the subordinate position of “south county leader.” Investigators
believed Benavidez was in the process of “taking over Madera County,” which suggested
he and Sanchez were similarly situated within the gang’s organizational hierarchy.
On August 24, 2015, law enforcement agents listened as Sanchez, Benavidez, and
Avalos began recruiting people for a “job” in Visalia. Sanchez communicated with
defendant by phone and via text messaging, and defendant agreed to meet up with the
“workers” that evening. In a separate message exchanged between Sanchez and
Benavidez, Sanchez remarked, “This is a good lick and great opportunity.” The agents
understood the word “lick” to be a slang term for robbery.
In addition to monitoring the electronic communications, agents conducted visual
surveillance outside of Avalos’s home in Lindsay and Benavidez’s apartment in Visalia.
At approximately 4:00 p.m., Sanchez and Avalos met at Avalos’s residence with a gang
member named Luis Corona and several unidentified Hispanic males. Corona
subsequently departed in a white Nissan Altima.
Over the next few hours, the involved parties alluded to a plan for the robbers to
impersonate agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Conversations between Sanchez and Avalos specified that uniforms would be provided
and everyone would be armed with guns. Benavidez worked on finding a suitable place
for the men to convene before and after the robberies. Earlier in the day, he had asked
the central county leader, Val Ornelas, for assistance in locating a safe house near
Pinkham Street, “anywhere from Lovers Lane to Ben Maddox [Way] and from Noble
[Avenue] to Tulare [Avenue].”
4.
Shortly after 7:00 p.m., Benavidez drove to the 1100 block of Pinkham Street and
met up with four people in a white Nissan Altima, which had just driven there from
Avalos’s residence. Avalos’s brother, Cervando, was among the group of people in the
white car. Both vehicles then drove to Benavidez’s apartment complex on South Encina
Street.
Benavidez called Sanchez to tell him the designated meeting place could not be
used and everyone should meet at his apartment. Sanchez sent defendant a message
informing him of the change, and defendant proceeded to contact Benavidez for
directions. At approximately 7:35 p.m., defendant and a group of unidentified passengers
arrived at Benavidez’s apartment in a silver BMW.
At 7:47 p.m., Cervando Avalos began making a series of calls to his brother and
Sanchez to complain about defendant’s crew being unprepared. There were no ATF
uniforms and some people did not have ammunition for their firearms. They were also in
need of a second vehicle. Cervando said defendant’s BMW had “dealer plates” and other
distinctive features that made it “too easy to spot.” When apprised of the situation,
Sanchez authorized a 24-hour postponement. While Cervando was talking to Sanchez,
defendant’s group left to obtain bullets and returned a few minutes later.
During a subsequent phone call between the Avalos brothers, Emanuel asked to
speak with whomever was “in charge there.” Defendant came on the line and provided a
status report, claiming they were “stocked up” with weapons and had two bulletproof
vests. Emanuel asked, “Is there anything on there that says ATF?” Defendant said no
and described the attire as “SWAT gear.”
Agents conducting aerial surveillance observed defendant’s BMW leave the
apartment complex again and drive to the vicinity of Pinkham Street and Noble Avenue.
The car drove slowly through a neighborhood before returning to Benavidez’s apartment
at approximately 8:29 p.m. About 30 minutes later, Benavidez sent the following text
message to Sanchez: “‘The homie went by the layout. I think we can handle it. The
5.
little homie just needs a few more [people].’” Sanchez replied that he had a crew “‘ready
to go’” and would “‘be on it tomorrow.’”
On August 25, 2015, defendant sent a text message to Sanchez: “‘On track,
brother, so you know[,] [I am] here in your area doing a bit more homework on the two
job sites.’” Sanchez replied, “‘Okay. [We’ll] give it another try tonight. I’ll be with you
shortly with some ideas.’” Later that afternoon, Sanchez exchanged the following text
messages with a person named Ricardo Reyes:
Sanchez: “‘Need two to three people for two pads [houses]. They’ll be
part of a team tonight in [Visalia]. We’ve been doing
homework for two days and tonight’s a go. Are you [in]?’”
Reyes: “‘[Yes.] I got the squad already, too. What is it, though, and
is it worth it?’”
Sanchez: “‘It’s two pads … square people. They got safes and guns
and gold. Just bring bangers [guns].’”
Reyes: “‘Got ’em. What part of Visa[lia]?’”
Sanchez: “‘By Walmart off Ben Maddox.’”
Reyes: “‘How much people in each pad?’”
Sanchez: “‘[They’re neighboring houses.] [One] has two people. One
has one. Old lady and a husband and wife …. It’s easy. Got
to be quick.’”
Reyes: “‘Oh, we’ll be fast. Who is gonna show us where it’s at and
[it’s] a for sure one right?’”
Sanchez: “‘Yes, we have a safe spot close by where we will meet up.’”
Due to problems acquiring one or more stolen vehicles, which apparently were
preferred over cars that could be traced back to them, the participants decided to use the
white Nissan Altima and Emanuel Avalos’s white Ford Explorer. Emanuel planned to
wait in his vehicle during the robberies and then use it to transport the loot. He and gang
member Juan Hinojosa discussed tying up the victims to prevent them from seeing the
6.
cars. When Emanuel expressed concern about waiting outside without a gun, Hinojosa
reminded him, “It’s an old guy and an old lady.”
At approximately 7:12 p.m., Sanchez sent a text message to Reyes confirming that
the “‘thing’” in Visalia was “‘[i]n process.’” At 7:24 p.m., defendant texted Sanchez to
say he was “‘[h]eading that way.’” At approximately 7:53 p.m., after his BMW had
pulled up to Benavidez’s apartment complex, defendant sent another message: “‘We
here.’” During the same general timeframe, Avalos informed Sanchez that his group was
almost in Visalia and were “‘ready to move once at the house.’”
At 8:03 p.m., the BMW moved to an adjacent street. The Nissan Altima and Ford
Explorer arrived a few minutes later. At approximately 8:20 p.m., the BMW’s occupants
got into the other vehicles, which then began driving toward Noble Avenue.
At 8:28 p.m., Emanuel Avalos sent a message to Sanchez: “‘We in motion. I’ll
update you soon.’” About a minute later, police attempted to stop the Altima. The lights
and siren of a marked patrol car were activated as the Altima was driving east on Noble
Avenue, past the Ben Maddox Way intersection and heading toward the Walmart
referenced in Sanchez’s text messages. The Altima accelerated and a high-speed chase
ensued, which continued until the car sustained damage driving over a median. The five
occupants, including defendant, fled on foot but were quickly apprehended.
A search of the Altima yielded a 22-caliber AR-style rifle and a pair of black latex
gloves. A mask and second pair of gloves were found outside the vehicle, and four
additional firearms were seized in conjunction with the suspects’ arrests. Most of the
firearms had been discarded and/or hidden in areas near where the suspects were
detained. The guns were loaded, and one had been wrapped up inside of a ski mask.
Defendant’s case was severed from a larger prosecution of dozens of people. He
was charged with conspiracy to commit “home invasion robbery” (see §§ 182, subd.
(a)(1), 211, 213, subd. (a)(1)(A); counts 19 & 162); participation in a “criminal street
gang conspiracy” to commit the same target offense (see § 182.5; count 20); possession
7.
of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 156); unlawful possession
of ammunition (§ 30305, subd. (a)(1); count 160); and “attempted home invasion
robbery” (see §§ 664, 211, 213, subd. (a)(1)(A); count 163). (Original capitalization
omitted.) Each offense was alleged to be gang related within the meaning of section
186.22, subdivision (b)(1).
Counts 19, 20, and 162 were alleged to be punishable by an indeterminate life
term under section 186.22, subdivision (b)(4). Defendant was further alleged to have
suffered a prior strike and serious felony conviction (§§ 667, subds. (a)(1), (b)–(i),
1170.12), and to have served two prior prison terms within the meaning of section 667.5,
former subdivision (b). A firearm enhancement was pleaded pursuant to section
12022.53, but the People did not submit the allegation to the jury.
The People’s case established the facts summarized above. The defense rested
without presenting any evidence. Defendant was convicted as charged (except for the
firearm enhancement) and sentenced to 35 years to life in prison plus a consecutive
determinate term of 19 years. Sentencing details are provided in the final section of the
opinion.
DISCUSSION
I. Attempted First Degree Robbery*
Defendant claims the People failed to prove the elements of attempted robbery as
alleged in count 163. “On appeal, the test of legal sufficiency is whether there is
substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude
that the prosecution sustained its burden of proof beyond a reasonable doubt.” (People v.
Boyer (2006) 38 Cal.4th 412, 479.) We construe the record in the light most favorable to
the judgment and presume “‘the existence of every fact the jury could reasonably have
deduced from the evidence.’” (People v. Mendez (2019) 7 Cal.5th 680, 702.)
*See footnote, ante, page 1.
8.
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) Section 212.5 divides the offense into degrees, and “every
robbery which is perpetrated in an inhabited dwelling house” constitutes “robbery of the
first degree.” (Id., subd. (a).) Harsher punishment is imposed for robberies committed
“in concert with two or more other persons … within an inhabited dwelling house.”
(§ 213, subd. (a)(1)(A).) The aggravated form of first degree robbery is commonly
referred to as “robbery in concert” or “home invasion robbery.” (People v. Jones (2012)
54 Cal.4th 350, 367; People v. Epperson (2017) 7 Cal.App.5th 385, 391.)
A criminal attempt consists of two elements: the specific intent to commit a crime
and “a direct but ineffectual act done toward its commission.” (§ 21a.) Case law
describes the second element as an “overt act” requirement. “The overt act element of
attempt requires conduct that goes beyond ‘mere preparation’ and ‘show[s] that
[defendant] is putting his or her plan into action.’” (People v. Watkins (2012) 55 Cal.4th
999, 1021, quoting People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).)
Therefore, attempted robbery requires the specific intent to commit robbery and an overt
act toward its commission that goes beyond planning or preparation.
“‘[P]reparation consists of devising or arranging the means or measures necessary
for the commission of the offense, while the attempt is the direct movement toward its
commission after the preparations are made.’” (People v. Memro (1985) 38 Cal.3d 658,
698, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
“[W]hen the acts are such that any rational person would believe a crime is about to be
consummated absent an intervening force, the attempt is underway ….” (People v.
Dillon (1983) 34 Cal.3d 441, 455 (plur. opn. of Mosk, J.) (Dillon).)
In People v. Bonner (2000) 80 Cal.App.4th 759, the appellant was convicted of
attempted robbery despite never encountering his intended victims. Michael Bonner had
inside information about a hotel manager’s routine of transporting cash to a bank. With a
9.
plan to rob the manager and his assistant as they were leaving the building, Bonner went
to the hotel and hid in a garage-level laundry room while armed and wearing a mask.
The housekeeping staff walked in on him, and he fled the scene. (Id. at pp. 761–762.) In
upholding the conviction, the appellate court noted that an overt act need not be “the last
proximate or ultimate step toward commission of the crime.” (Id. at p. 764, citing People
v. Kipp (1998) 18 Cal.4th 349, 376.)
The dividing line between acts of preparation and a criminal attempt “depends
upon the facts and circumstances of a particular case.” (Decker, supra, 41 Cal.4th at p.
14.) “Although a definitive test has proved elusive, [courts] have long recognized that
‘[w]henever the design of a person to commit crime is clearly shown, slight acts in
furtherance of the design will constitute an attempt.’” (Id. at p. 8, quoting People v.
Anderson (1934) 1 Cal.2d 687, 690 (Anderson).) The stronger the evidence of intent,
“the more likely that steps in the early stages of the commission of the crime will satisfy
the overt act requirement.” (Dillon, supra, 34 Cal.3d at p. 455 (plur. opn. of Mosk, J.).)
In other words, “[w]here the intent to commit the crime is clearly shown, an act done
toward the commission of the crime may be sufficient for an attempt even though that
same act would be insufficient if the intent is not as clearly shown.” (People v. Bonner,
supra, 80 Cal.App.4th at p. 764.)
Defendant’s opening brief factually distinguishes this case from Dillon, Anderson,
and People v. Vizcarra (1980) 110 Cal.App.3d 858, each of which involved would-be
robbers who, in defendant’s words, reached “the immediate vicinity of the location” of
the intended crime. In Anderson, where the California Supreme Court first adopted the
slight acts rule, the brandishing of a firearm roughly two feet away from a theater’s ticket
window was held to constitute attempted robbery. However, the high court described the
appellant’s “conduct in concealing the gun on his person and going to the general
vicinity” of the theater as “mere acts of preparation.” (Anderson, supra, 1 Cal.2d at p.
690.) In Vizcarra, the appellant’s movement toward a liquor store while armed with a
10.
rifle was deemed “a sufficient direct act toward the accomplishment of the robbery” in
light of his effort to “hide on the pathway immediately adjacent to the liquor store when
observed by a customer.” (Vizcarra, supra, 110 Cal.App.3d at p. 862.) In Dillon, the
appellant committed attempted robbery by breaching the outer perimeter of a marijuana
farm—which he knew to be guarded—while he and his accomplices were in possession
of “guns, knives, clubs, masks, rope, and strips of sheeting.” (Dillon, supra, 34 Cal.3d at
pp. 455–456 (plur. opn. of Mosk, J.); see id. at p. 451.)
Defendant claims he did not get close enough to the targeted houses to commit
attempted home invasion robbery. In response, the People rely on the slight acts rule and
characterize the “general vicinity” statement in Anderson as obiter dictum. (Anderson,
supra, 1 Cal.2d at p. 690; see Childers v. Childers (1946) 74 Cal.App.2d 56, 61–62
[“There is no kinship between stare decisis and obiter dictum. Whatever may be said in
an opinion that is not necessary to a determination of the question involved is to be
regarded as mere dictum”].) In his reply brief, defendant argues the Anderson dictum
was cited approvingly in People v. Garton (2018) 4 Cal.5th 485 (Garton), which is true.
Defendant directs our attention to page 512 of Garton, but the more salient reference is
made in a string citation to support the following statement: “[O]ur case law does not
suggest that a defendant with clearly shown intent need only make preparations or start
moving toward the intended victim to be guilty of attempted murder.” (Id. at p. 514.)
The appellant in Garton was a Shasta County resident who had devised an
elaborate plot to kill a man who lived in Gresham, Oregon, and worked in the nearby city
of Portland. (Garton, supra, 4 Cal.5th at pp. 490–491, 508–509.) Todd Garton spent
months planning the murder and even traveled to Oregon to familiarize himself with the
man’s home and place of business. (Id. at pp. 491, 508.) Garton was having sexual
relations with the intended victim’s wife, and she was in on the plan. (Id. at pp. 490–
491.)
11.
In February 1998, Garton and two accomplices “loaded Garton’s car with an
assortment of guns, ammunition, and knives, as well as a homemade silencer, latex
gloves, and two walkie-talkies,” and then drove from Shasta County to Gresham, Oregon.
(Garton, supra, 4 Cal.5th at p. 509; see id. at p. 496.) They arrived the same day and
spent the night at a motel. The next morning, the trio drove to the intended victim’s
workplace and waited in a parking garage, intending to kill him when he arrived.
However, “unbeknownst to Garton, [the wife had told her husband] to drive the larger of
their cars, knowing that this car would not fit into the garage where the three men waited.
After realizing that [he] had parked elsewhere, the men left.…” (Garton, at p. 491; see
id. at p. 509.)
The relevant issue in Garton was whether the trial court had territorial jurisdiction
over a charge of conspiracy to commit an out-of-state murder. Under the law in effect in
1998, such jurisdiction would not have existed unless the “acts within California’s
borders independently constituted an attempt to commit murder.” (Garton, supra, 4
Cal.5th at p. 510.) In a four-to-three decision, the California Supreme Court concluded
the steps taken by Garton in this state were insufficient to satisfy the overt act element of
attempted murder. (Id. at p. 513.) Two circumstances were dispositive: First, “Garton’s
actions in California did not occur in close proximity to the victim or to the anticipated
site of the murder in the Portland area.” (Id. at p. 512.) Second, “Garton’s actions in
California on February 6, 1998, were temporally separated by one night from his actions
in Oregon on the morning of February 7, 1998.” (Id. at p. 513.) Therefore, “at the
moment defendant and his coconspirators entered into Oregon, the plot to kill [the
intended victim] was not ‘in such progress that it [would] be consummated unless
interrupted by circumstances independent of the will of the attempter ….’” (Id. at pp.
513–514.)
The facts of this case differ significantly from those in Garton. When Garton
reached the Oregon border, he was still hundreds of miles away from his intended victim.
12.
(Garton, supra, 4 Cal.5th at p. 525 (conc. & dis. opn. of Chin, J.).) Here, defendant was
in a car traveling east on Noble Avenue and approaching the intersection of Pinkham
Street, i.e., the neighborhood in which the jury impliedly found the targeted homes were
located. The Altima was on course to reach its destination in a matter of minutes or even
seconds.1 However, in further contrast to Garton, defendant’s plan was thwarted by
police intervention.
If the unlawful design involves “concerted action—and hence a greater likelihood
that the criminal objective will be accomplished [citation]—there is a greater urgency for
intervention by the state at an earlier stage in the course of that conduct.” (Decker,
supra, 41 Cal.4th at pp. 10–11.) “When a defendant’s intent is ‘“clearly shown, slight
acts done in furtherance of that design will constitute an attempt, and the courts should
not destroy the practical and common-sense administration of the law with subtleties as
to what constitutes preparation and what constitutes an act done toward the commission
of a crime.”’” (People v. Davis (2009) 46 Cal.4th 539, 606, quoting People v. Memro,
supra, 38 Cal.3d at p. 698.) In this instance, police saw a nefarious plot being carried out
in real time and intervened after the participants had clearly demonstrated their intent to
commit a home invasion robbery. The question is whether the law required defendant to
reach the targeted home or take even further steps toward committing the crime in order
for jurors to find the requisite overt act.
“The standard is not that attempt liability attaches when law enforcement may
lawfully intercede for investigative or crime prevention purposes.” (Garton, supra, 4
1The jury viewed People’s exhibit No. 14, which is a video containing 11 minutes of
aerial surveillance footage beginning shortly before the Altima departed from Benavidez’s
apartment complex and ending after its occupants had exited the car and began running from the
police. The recording equipment had mapping software, so the roadways traversed by the
vehicle are identified in the video. The time counter reads 20:29:43 (8:29 p.m. and 43 seconds)
at the approximate moment when a police car pulls behind the Altima as it is crossing over South
Ben Maddox Way. The Altima reaches the intersection of East Noble Avenue and South
Pinkham Street approximately 35 seconds later, when the counter reads 20:30:18.
13.
Cal.5th at p. 510.) “If it is not clear from a suspect’s acts what he intends to do, an
observer cannot reasonably conclude that a crime will be committed; but when the acts
are such that any rational person would believe a crime is about to be consummated
absent an intervening force, the attempt is underway ….” (Dillon, supra, 34 Cal.3d at p.
455 (plur. opn. of Mosk, J.).) After careful consideration of the governing principles, we
conclude the evidence is sufficient to support the verdict of attempted first degree
robbery. The particular facts and circumstances of this case “would lead a reasonable
person to ‘believe a crime [was] about to be consummated absent an intervening force’—
and thus that ‘the attempt [was] underway’” when the police interceded. (Decker, supra,
41 Cal.4th at p. 9.)
In a related argument, defendant says “it is unknown whether the intended victims
were even home” and alleges “their presence was a condition precedent to an attempted
robbery that otherwise would have been a mere burglary.” He cites no authority for this
proposition and fails to affirmatively demonstrate error. It is settled that “the commission
of an attempt does not require proof of any particular element of the completed crime,”
and “a person may be convicted of an attempt to commit a crime he never could have
completed under the circumstances.” (People v. Chandler (2014) 60 Cal.4th 508, 517.)
II. Assembly Bill 333
A. Overview
Section 186.22 prohibits unlawful participation in a criminal street gang, as set
forth in subdivision (a), and includes sentencing enhancement provisions, which are
found in subdivision (b). The statute also has alternate penalty provisions, section
186.22, subdivisions (b)(4), (5), and (d), the latter of which allows for punishment of up
to three years in prison if the defendant is “convicted of a gang-related misdemeanor
offense.” (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
14.
A criminal street gang is “an ongoing, organized association or group of three or
more persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in subdivision (e), having a
common name or common identifying sign or symbol, and whose members collectively
engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f).)
A “‘pattern of criminal gang activity’ means the commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of” two or more offenses listed in section 186.22, subdivision (e), if such
conduct occurred within certain time frames and under particular circumstances specified
therein. (§ 186.22, subd. (e)(1).) This is commonly known as the “predicate offenses”
requirement. (People v. Navarro (2021) 12 Cal.5th 285, 311.)
“The elements of the gang participation offense in section 186.22[,] [subdivision]
(a) are: First, active participation in a criminal street gang, in the sense of participation
that is more than nominal or passive; second, knowledge that the gang’s members engage
in or have engaged in a pattern of criminal gang activity; and third, the willful promotion,
furtherance, or assistance in any felonious criminal conduct by members of that gang.”
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (plur. opn. of Corrigan, J.).) The
enhancements and alternate penalty provisions apply only to gang-related crimes,
meaning offenses “committed for the benefit of, at the direction of, or in association with
a criminal street gang.” (§ 186.22, subds. (b), (d); accord, People v. Livingston (2012) 53
Cal.4th 1145, 1170.) The enhancements and alternate penalties further require “the
specific intent to promote, further, or assist in criminal conduct by gang members.”
(§ 186.22, subds. (b)(1), (4), (d).)
By enactment of Assembly Bill 333, section 186.22 has new requirements for
establishing liability under subdivisions (a), (b), and (d). (Stats. 2021, ch. 699, § 3.) As
of January 1, 2022, predicate offenses must be shown to have “commonly benefited” the
alleged gang, and the common benefit must have been “more than reputational.”
15.
(§ 186.22, subd. (e)(1).) Currently charged offenses no longer qualify (id., subd. (e)(2)),
and at least one predicate offense must have been committed “within three years of the
date the current offense is alleged to have been committed …” (id., subd. (e)(1)).
Among other additional changes, the terms “benefit,” “promote,” “further,” and “assist”
are now defined to mean providing “a common benefit to members of a gang where the
common benefit is more than reputational.” (Id., subd. (g).)
Assembly Bill 333 also added section 1109. (Stats. 2021, ch. 699, § 5.) The new
statute provides:
“(a) If requested by the defense, a case in which a gang enhancement
is charged under subdivision (b) or (d) of Section 186.22 shall be tried in
separate phases as follows:
“(1) The question of the defendant’s guilt of the underlying offense
shall be first determined.
“(2) If the defendant is found guilty of the underlying offense and
there is an allegation of an enhancement under subdivision (b) or (d) of
Section 186.22, there shall be further proceedings to the trier of fact on the
question of the truth of the enhancement. Allegations that the underlying
offense was committed for the benefit of, at the direction of, or in
association with, a criminal street gang and that the underlying offense was
committed with the specific intent to promote, further, or assist in criminal
conduct by gang members shall be proved by direct or circumstantial
evidence.
“(b) If a defendant is charged with a violation of subdivision (a) of
Section 186.22, this count shall be tried separately from all other counts
that do not otherwise require gang evidence as an element of the crime.
This charge may be tried in the same proceeding with an allegation of an
enhancement under subdivision (b) or (d) of Section 186.22.”
B. Retroactivity of Amendments to Section 186.22
Section 3 states that no part of the Penal Code is retroactive “unless expressly so
declared.” However, in In re Estrada (1965) 63 Cal.2d 740, an amendment to a criminal
statute was held to apply retroactively despite the Legislature’s failure to expressly
declare such an intent. (Id. at pp. 742–745.) The rationale for this outcome has come to
16.
be known as the “Estrada rule.” (E.g., People v. Frahs (2020) 9 Cal.5th 618, 624.) In
brief, “[w]hen new legislation reduces the punishment for an offense, we presume that
the legislation applies to all cases not yet final as of the legislation’s effective date.”
(People v. Esquivel (2021) 11 Cal.5th 671, 673.)
The Estrada rule has been applied “to statutes that merely made a reduced
punishment possible.” (People v. Frahs, supra, 9 Cal.5th at p. 629.) In People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, the inference of retroactivity was extended
to legislation that “ameliorated the possible punishment for a class of persons.” (Id. at p.
308.) In Frahs, a pretrial diversion statute (§ 1001.36) was held to apply retroactively
because it “offers a potentially ameliorative benefit for a class of individuals—namely,
criminal defendants who suffer from a qualifying mental disorder.” (Frahs, at p. 631.)
“[I]n order to rebut Estrada’s inference of retroactivity concerning ameliorative
statutes, the Legislature must ‘demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it.’” (People v. Frahs, supra, 9 Cal.5th at p.
634.) Assembly Bill 333 “increases the threshold for conviction of the section 186.22
offense and the imposition of the enhancement” (People v. Lopez (2021) 73 Cal.App.5th
327, 344), which obviously confers potentially ameliorative benefits upon a class of
persons to which defendant belongs. (See Tapia v. Superior Court (1991) 53 Cal.3d 282,
301 [Estrada rule applies “to statutes which redefine, to the benefit of defendants,
conduct subject to criminal sanctions”].) Because there is no clear indication of
legislative intent for prospective-only application, we conclude the amendments to
section 186.22 apply retroactively in this case.
The People appropriately concede defendant’s arguments for reversal of the gang
enhancements. As discussed in their briefing, the trial evidence addressing the predicate
offenses requirement was insufficient under the current version of section 186.22. “The
proper remedy for this type of failure of proof—where newly required elements were
‘never tried’ to the jury—is to remand and give the People an opportunity to retry the
17.
affected charges.” (People v. E.H. (2022) 75 Cal.App.5th 467, 480; accord, People v.
Rodriguez (2022) 75 Cal.App.5th 816, 822–823 & fn. 19.)
C. Constitutionality of Impact on Section 182.5
There is a split of authority on the constitutionality of Assembly Bill 333 as
applied in certain contexts. The issue first arose in cases involving allegations pleaded
under section 190.2, subdivision (a)(22) (section 190.2(a)(22)). This case presents the
first challenge made in relation to section 182.5. We will briefly discuss the emerging
case law before explaining why we are unpersuaded by the People’s position.
In People v. Lopez, supra, 73 Cal.App.5th 327, the Second Appellate District,
Division Eight, concluded “Assembly Bill 333’s changes to section 186.22 affect not
only the gang enhancement allegations under that statute but other statutes that expressly
incorporate provisions of section 186.22,” including section 190.2(a)(22). (Lopez, at p.
346.) Section 190.2(a)(22) was enacted as part of Proposition 21, an initiative measure
approved by the electorate in the March 2000 primary election. (People v. Shabazz
(2006) 38 Cal.4th 55, 64–65.) Section 190.2(a)(22) makes first degree murder a capital
crime if “[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.” (Italics
added.)
The Second Appellate District’s Lopez opinion holds that because “the definition
of a criminal street gang has been narrowed by Assembly Bill 333 and new elements
added in order to prove a criminal street gang and a pattern of criminal activity,” the
requirements for proving a gang special circumstance under section 190.2(a)(22) have
likewise changed.2 (People v. Lopez, supra, 73 Cal.App.5th at p. 347.) In People v.
2The People note there is no indication the appellate panel in Lopez considered the
constitutional ramifications of this holding. (See People v. Lopez, supra, 73 Cal.App.5th at pp.
343–347.)
18.
Rojas (2022) 80 Cal.App.5th 542 (Rojas), a divided panel in our district reached the
opposite conclusion. The Rojas majority held that “[b]ecause Assembly Bill 333 ‘takes
away’ from the scope of conduct that Proposition 21 made punishable under section
190.2” (id. at p. 555), “it is unconstitutional to the extent it would amend that initiative”
(id. at p. 557).
The Rojas majority relied on the fact that California voters restricted the
Legislature’s ability to amend the provisions of Proposition 21. The majority’s reasoning
was as follows: “While the Legislature was free to amend Proposition 21 …, it could
only do so with a two-thirds vote in each house. (Voter Information Guide, Primary Elec.
(Mar. 7, 2000) text of Prop. 21, … § 39, p. 131.) Assembly Bill 333 did not comply with
that requirement and therefore cannot amend Proposition 21.” (Rojas, supra, 80
Cal.App.5th at p. 555.) In practical effect, Rojas holds that a special circumstance
murder allegation under section 190.2(a)(22) may be proven based on a different, less
restrictive definition of a “criminal street gang” than is found in the current version of
section 186.22. (See Rojas, p. 558 [holding “Assembly Bill 333 does not alter the scope
or effect of section 190.2, subdivision (a)(22)”].)
In People v. Lee (2022) __ Cal.App.5th __ [2022 Cal.App. LEXIS 624], Division
Four of the Second District concluded Assembly Bill 333 does not unconstitutionally
amend section 190.2(a)(22). Focusing on the question of voter intent, the Lee court
opined there is “nothing to suggest that the electorate intended to impose a time-specific
incorporation of the term ‘criminal street gang’ in the gang-murder special circumstance
statute.” (Id. at p. __ [2022 Cal.App. LEXIS 624, *18].) Accordingly, Lee holds “that
the term ‘criminal street gang’ as incorporated in the gang-murder special-circumstance
statute was ‘intended to conform at all times’ and ‘remain permanently parallel’ to
section 186.22.” (Ibid., quoting In re Jovan B. (1993) 6 Cal.4th 801, 816 & fn. 10.)
We now turn to the gang conspiracy statute, which was also enacted by
Proposition 21. Like section 190.2(a)(22), it expressly incorporates specific provisions of
19.
section 186.22. Section 182.5 provides, in relevant part, “[A]ny person who actively
participates in any criminal street gang, as defined in subdivision (f) of Section 186.22,
with knowledge that its members engage in or have engaged in a pattern of criminal gang
activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes,
furthers, assists, or benefits from any felonious criminal conduct by members of that gang
is guilty of conspiracy to commit that felony and may be punished as specified in
subdivision (a) of Section 182.” (Italics added.)
The People submit that Assembly Bill 333’s “amendment to section 186.22,
subdivisions (e) and (f), appears to be an unconstitutional amendment to the criminal
street gang conspiracy offense created by the voters via Proposition 21.” Although the
People’s supplemental briefing was filed before Rojas was published, their argument
tracks the rationale espoused by the Rojas majority. Likewise, the People claim there are
now two statutory definitions of a “criminal street gang.” Although the gang conspiracy
statute incorporates the definitions set forth in section 186.22, subdivisions (e) and (f), the
People argue those references must be read to mean as the provisions existed prior to
Assembly Bill 333.
1. Additional Background
Section 186.22 was enacted as part of the California Street Terrorism Enforcement
and Prevention Act (STEP Act). (People v. Brookfield (2009) 47 Cal.4th 583, 588.)
“The Legislature passed the act in order ‘to seek the eradication of criminal activity by
street gangs by focusing upon patterns of criminal gang activity and upon the organized
nature of street gangs, which together, are the chief source of terror created by street
gangs.’” (People v. Mesa (2012) 54 Cal.4th 191, 196, quoting § 186.21.) “The original
STEP Act was an urgency measure that went into effect on September 26, 1988.”
(People v. Valencia (2021) 11 Cal.5th 818, 829, fn. 9.) It was then reenacted in the
20.
Omnibus Motor Vehicle Theft Act of 1989. (People v. Lopez, supra, 12 Cal.5th at p.
969.)
Early versions of the STEP Act defined a “criminal street gang” as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of the criminal acts
enumerated in … subdivision (e), 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. (f), as amended by Stats.
1989, ch. 930, § 5.1.)
The STEP Act was amended in 1994 to expand the list of qualifying primary
activities and predicate offenses, notably adding the crimes of looting and felony
vandalism. (Former § 186.22, subd. (e)(13), (20), as amended by Stats. 1994, ch. 47, § 1;
People v. Superior Court (Johnson) (2004) 120 Cal.App.4th 950, 957.) By the latter part
of the decade, the STEP Act had “been amended almost every year, sometimes several
times in a year,” since its original enactment. (People v. Gardeley (1996) 14 Cal.4th 605,
615, fn. 7.) “This complex legislation became even more so in 2000, when California’s
voters passed Proposition 21.” (People v. Brookfield, supra, 47 Cal.4th at p. 588.)
The provisions of Proposition 21 are summarized in Manduley v. Superior Court
(2002) 27 Cal.4th 537. “Section 1 sets forth the short title of the measure—the Gang
Violence and Juvenile Crime Prevention Act of 1998.”3 (Manduley, at p. 574.) “Section
2 contains findings and declarations, which refer to the growing problem of juvenile and
gang-related violent crime, the inability of the juvenile justice system to protect the
public adequately from violent juvenile offenders, the goal of devoting fewer resources of
3Proposition 21 traces back to proposed legislation sponsored by former Governor Pete
Wilson during the 1997–1998 Regular Session. (People v. Arroyas (2002) 96 Cal.App.4th 1439,
1447.) “Because the Legislature failed to enact the crime bill, Governor Wilson took the
legislation to the people of California.” (Id. at p. 1448.)
21.
the juvenile court to violent offenders and more to those offenders who can be
rehabilitated, the desirability of eliminating confidentiality in some juvenile proceedings
in order to hold juvenile offenders more accountable for their actions, and the need to
increase penalties for gang-related felonies.” (Ibid.)
“Sections 3 through 13 of the initiative are related to criminal gang activity.”
(Manduley v. Superior Court, supra, 27 Cal.4th at p. 574.) As relevant here, section 3 of
Proposition 21 added the gang conspiracy statute (§ 182.5) to the Penal Code. (Voter
Information Guide, Primary Elec. (Mar. 7. 2000) text of Prop. 21, § 3, p. 119 (Voter
Guide).) Section 4 of Proposition 21 amended multiple provisions of Penal Code section
186.22. (Voter Guide, supra, text of Prop. 21, § 4, pp. 119–120.) “Section 11 amends
Penal Code section 190.2 to add gang-related murder as a special circumstance
permitting the imposition of the death penalty or a sentence of life without the possibility
of parole.” (Manduley, at p. 574; see § 190.2(a)(22).)
“Sections 14 through 17 of Proposition 21 amend portions of the Three Strikes
law.” (Manduley v. Superior Court, supra, 27 Cal.4th at p. 574.) “Sections 18 through
34 of Proposition 21 amend provisions of the Welfare and Institutions Code concerning
the juvenile justice system.” (Id. at p. 575.) Sections 35 through 38 of the initiative
contain additional declarations of legislative intent and a severability clause. (Voter
Guide, supra, text of Prop. 21, p. 131.)
Lastly, section 39 of Proposition 21 states, “The provisions of this measure 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 Guide, supra,
text of Prop. 21, § 39, p. 131.)
22.
2. Analysis
“The Legislature may amend or repeal an initiative statute by another statute that
becomes effective only when approved by the electors unless the initiative statute permits
amendment or repeal without the electors’ approval.” (Cal. Const., art. II, § 10, subd.
(c).) As discussed, Proposition 21 allows the Legislature to amend its provisions but only
“by a statute passed in each house by rollcall vote entered in the journal, two-thirds of the
membership of each house concurring,” or a statute approved by the electorate. (Voter
Guide, supra, text of Prop. 21, § 39, 131.) There is no dispute that Assembly Bill 333
“was enacted without voter approval, and without the requisite two-thirds votes in both
houses of the Legislature.” (People v. Lee, supra, __ Cal.App.5th at p. __ [2022
Cal.App. LEXIS 624, *10.)
Does Assembly Bill 333 unconstitutionally amend Proposition 21? The People
say the answer is yes, at least as applied to section 182.5. They concede Assembly Bill
333 made no changes to the text of section 182.5. (Compare Stats. 2021, ch. 699 with
Voter Guide, supra, text of Prop. 21, § 3, p. 119.) However, certain elements of the gang
conspiracy offense proscribed by section 182.5 are defined by incorporation of provisions
that were amended by Assembly Bill 333, namely section 186.22, subdivisions (e) and
(f). (See People v. Kelly (2010) 47 Cal.4th 1008, 1027 [holding an “amendment” in this
context “includes a legislative act that changes an existing initiative statute by taking
away from it”].)
“‘In determining whether a legislative act has amended an existing statute, we
examine and compare the provisions of the legislative act or new law with the existing
statute.’” (People v. Lippert (2020) 53 Cal.App.5th 304, 311.) “‘We simply need to ask
whether [the statute] prohibits what the initiative authorizes, or authorizes what the
initiative prohibits.’” (Ibid., quoting People v. Superior Court (Pearson) (2010) 48
Cal.4th 564, 571.) “We must interpret the law to ensure that the voters ‘“get what they
23.
enacted, not more and not less.”’ [Citation.] The voters’ intent is our ‘paramount
consideration.’” (Lippert, at p. 311.)
We begin by examining Proposition 21 in light of the principle codified in
Government Code section 9605: “If a section or part of a statute is amended, it is not to
be considered as having been repealed and reenacted in the amended form. The portions
that are not altered are to be considered as having been the law from the time when those
provisions were enacted; the new provisions are to be considered as having been enacted
at the time of the amendment; and the omitted portions are to be considered as having
been repealed at the time of the amendment.” (Id., subd. (a).)
In other words, “the parts of an amended statute that are copied without change are
considered to have been part of the law all along and thus cannot be considered to be
among the initiative’s statutory provisions.” (People v. Superior Court (Ferraro) (2020)
51 Cal.App.5th 896, 915; accord, County of San Diego v. Commission on State Mandates
(2018) 6 Cal.5th 196, 209–210.) “When technical reenactments are required under article
IV, section 9 of the Constitution—yet involve no substantive change in a given statutory
provision—the Legislature in most cases retains the power to amend the restated
provision through the ordinary legislative process. This conclusion applies unless the
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.” (Commission on State Mandates,
p. 214.) Our analysis, therefore, goes beyond simply looking at how section 186.22,
subdivisions (e) and (f) differ today from the versions in Proposition 21. We focus
instead on whether Proposition 21 substantively revised the preexisting definition of a
“criminal street gang” and, if so, whether Assembly Bill 333 materially alters those
changes to the definitional provisions.
Section 186.22, subdivision (e), defines the term “pattern of criminal gang
activity” for purposes of the STEP Act. Proposition 21 reenacted this provision without
24.
substantive change to the first paragraph of the prior version except for adding the words,
“conspiracy to commit.” The full text of the Proposition 21 version is as follows: “As
used in this chapter, ‘pattern of criminal gang activity’ means the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the following offenses, provided at least one
of these offenses occurred after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.” (Voter Guide, supra, text
of Prop. 21, § 4, p. 120, original italics.)
Proposition 21’s addition of the words “conspiracy to commit” to the first
paragraph of former section 186.22, subdivision (e) is unchanged by Assembly Bill 333.
(See Stats. 2021, ch. 699, § 3.) The current version provides: “As used in this chapter,
‘pattern of criminal gang activity’ means the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of,
two or more of the following offenses, provided at least one of these offenses occurred
after the effective date of this chapter, and the last of those offenses occurred within three
years of the prior offense and within three years of the date the current offense is alleged
to have been committed, the offenses were committed on separate occasions or by two or
more members, the offenses commonly benefited a criminal street gang, and the common
benefit of the offense is more than reputational.” (§ 186.22, subd. (e)(1), italics added.)
The italics above indicate Assembly Bill 333’s substantive revisions to the first
paragraph of former section 186.22, subdivision (e), which has been renumbered as
subdivision (e)(1). The changes to the three-year “washout” period and the new
“common benefit” requirement amend the law as it existed before and after Proposition
21. These amendments do not change any part of section 186.22, subdivision (e) that was
25.
enacted by Proposition 21.4 (See Gov. Code, § 9605, subd. (a); County of San Diego v.
Commission on State Mandates, supra, 6 Cal.5th at pp. 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”].)
Proposition 21 made substantive changes to other parts of section 186.22
regarding the circumstances under which grand theft qualifies as a predicate offense.
Those amendments to former subdivision (e)(9) and (10) of section 186.22 were
reenacted by Assembly Bill 333 with identical text as subdivision (e)(1)(I) and (J).
(Compare Stats. 2021, ch. 699, § 3 with Voter Guide, supra, text of Prop. 21, § 4, p. 120.)
Proposition 21 also expanded the list of qualifying predicates to include criminal threats
and violations of Vehicle Code section 10851. (Former § 186.22, subds. (e)(24), (25);
Voter Guide, supra, text of Prop. 21, § 4, p. 120.) Those amendments were reenacted by
Assembly Bill 333 with identical text as subdivision (e)(1)(V) and (W) of section 186.22.
(Stats. 2021, ch. 699, § 3.)
Assembly Bill 333 did narrow the definition of a “pattern of criminal gang
activity” by deleting from section 186.22 former subdivisions (e)(13) (looting), (e)(20)
(felony vandalism), (e)(26) (“Felony theft of an access card or account information, as
defined in Section 484e”), (e)(27) (“Counterfeiting, designing, using, or attempting to use
an access card, as defined in Section 484f”), (e)(28) (“Felony fraudulent use of an access
card or account information, as defined in Section 484g”), (e)(29) (“Unlawful use of
personal identifying information to obtain credit, goods, services, or medical information,
as defined in Section 530.5”), and (e)(30) (“Wrongfully obtaining Department of Motor
4The first paragraph of section 186.22, former subdivision (e) is further impacted by
Assembly Bill 333’s enactment of current subdivision (e)(2), which states, “The currently
charged offense shall not be used to establish the pattern of criminal gang activity.” (Stats. 2021,
ch. 699, § 3.) However, reliance on currently charged offenses to establish a pattern of criminal
gang activity predated Proposition 21 and was based on judicial interpretations of the “two or
more” predicate offenses requirement, i.e., language reenacted without substantive change by
Proposition 21. (See People v. Loeun (1997) 17 Cal.4th 1, 4–5, 7, fn. 3, 9–10.)
26.
Vehicles documentation, as defined in Section 529.7”). (Stats. 2021, ch. 699, § 3.)
However, these changes do not unconstitutionally amend Proposition 21. The crimes
listed in former subdivision (e)(26) through (e)(30) were not predicate offenses under
Proposition 21; they were added as qualifying predicates by legislative amendment
effective January 1, 2006.5 (Stats. 2005, ch. 482, § 1.) Looting and felony vandalism, as
previously discussed, became predicate offenses in 1994 (Stats. 1994, ch. 47, § 1), and
their inclusion in section 186.22, former subdivision (e) is “considered as having been the
law from the time when those provisions were enacted” (Gov. Code, § 9605, subd. (a)).6
Section 186.22, subdivision (f) defines the term “criminal street gang” for
purposes of the STEP Act. Proposition 21 reenacted this provision without any changes
to the prior version except to indicate that the number of qualifying predicate offenses
5The People make a point of the fact the Legislature amended section 186.22 in 2005,
2006, and 2009, and in every instance “specifically acknowledged the need for a two-thirds
majority vote in each house [because of] Proposition 21.” The discussion is misguided for two
reasons. First, the Legislature’s views regarding the legality of its enactments are not binding on
the judiciary. (See Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244
[legislative declarations are “neither binding nor conclusive in construing the statute. Ultimately,
the interpretation of a statute is an exercise of the judicial power the Constitution assigns to the
courts”].) Second, the People concede Assembly Bill 333’s amendments to section 186.22 are
constitutional for purposes of that statute. The Rojas opinion reaches the same conclusion
despite its holding as to section 190(a)(22). (See Rojas, supra, 80 Cal.App.5th at p. 557 [stating
the “appropriate remedy is not to void Assembly Bill 333 in its entirety, but rather to disallow
this unconstitutional application of Assembly Bill 333”].) If Assembly Bill 333 permissibly
amends section 186.22, the Legislature’s belief in the need for a supermajority vote to amend the
statute on prior occasions—whether correct or not—is irrelevant.
6We are mindful that Proposition 21 amended the vandalism statute (§ 594) by reducing
the threshold amount of damage qualifying the offense as a felony from $5,000 to only $400.
(Voter Guide, supra, text of Prop. 21, § 12.5, p. 123; Robert L. v. Superior Court (2003) 30
Cal.4th 894, 906, fn. 14.) The ballot materials do not provide a reason for this substantial
revision. But the amendment applies to all vandalism prosecutions, not just those of gang
members, and nothing indicates that having felony vandalism continue to qualify as a predicate
offense under section 186.22 was “integral to accomplishing the electorate’s goals in enacting
the initiative” (County of San Diego v. Commission on State Mandates, supra, 6 Cal.5th at p.
214). The People do not argue otherwise. Again, they maintain Assembly Bill 333 did not
impermissibly amend section 186.22 and is unconstitutional only as applied to section 182.5.
27.
had risen. The Proposition 21 version reads: “As used in this chapter, ‘criminal street
gang’ means 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 (23) (25), inclusive, of
subdivision (e), having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (Voter Guide, supra, text of Prop. 21, § 4, p. 120, original italics
and strikethrough text.)
Assembly Bill 333 amended section 186.22, subdivision (f) as follows: “As used
in this chapter, ‘criminal street gang’ means any an ongoing organization, organized
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission of one or more of the criminal acts enumerated in
paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a
common name or common identifying sign or symbol, and whose members individually
or collectively engage in, or have engaged in, a pattern of criminal gang activity.” (Stats.
2021, ch. 699, § 3, original strikethrough text, italics added.) Because Proposition 21
made no substantive changes to subdivision (f) of section 186.22, Assembly Bill 333’s
additions and deletions are constitutionally permissible. (Accord, People v. Lee, supra,
__ Cal.App.5th at p. __ [2022 Cal.App. LEXIS 624, *13–*14] [holding “the voters left
intact the Legislature’s power to amend the definition of a criminal street gang in section
186.22, subdivision (f)”].)
As noted, the People contend “[Assembly Bill] 333’s amendments of section
186.22, subdivisions (e) and (f), are only invalid as those amendments are applied to the
criminal street gang conspiracy offense created by the voters in Proposition 21” and
“remain valid as applied in other contexts.” This necessarily posits the Proposition 21
electorate generally intended to allow legislative amendments (by less than two-thirds
approval in both houses) to section 186.22’s definition of a “criminal street gang” for
28.
purposes of that statute, but not for purposes of section 182.5. Yet the People fail to
identify any evidence of such intent. Moreover, they claim it is unnecessary to “consider
whether the practical effect of [Assembly Bill] 333 amends what the voters intended” in
that regard. We disagree.
“Special rules of statutory interpretation govern how to apply a statute
incorporating another statute that changes over time.” (Doe v. Saenz (2006) 140
Cal.App.4th 960, 981.) “In Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53(Palermo), our Supreme Court set forth a seemingly categorical rule: ‘“It is a well
established principle of statutory law 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.”’” (Saenz, at p. 981.)
The People rely on In re Oluwa (1989) 207 Cal.App.3d 439, quoting an excerpt
from Oluwa wherein the Palermo language is recited. “However, ‘“[t]he Palermo rule is
not to be applied in a vacuum”’ [citation], and the California Supreme Court has clarified
that ‘where the words of an incorporating statute do not make clear whether it
contemplates only a time-specific incorporation, “the determining factor will be …
legislative intent.”’” (People v. Nash (2020) 52 Cal.App.5th 1041, 1062, italics added.)
The California Supreme Court limited the Palermo holding in In re Jovan B.,
supra, 6 Cal.4th 801, noting that while “[s]everal modern decisions have applied the
Palermo rule,” including In re Oluwa, “none have done so without regard to other indicia
of legislative intent.” (Jovan B., at p. 816, fn. 10.) In the Palermo case itself, a time-
specific intent was facially apparent from statutory provisions referencing “any treaty
now existing.” (Palermo, supra, 32 Cal.2d at pp. 57–60.) The Jovan B. line of
authority—which the People fail to acknowledge in their briefing—thus holds “a
formulaic application of the Palermo rule is inappropriate … when the incorporating
statute does ‘not make clear whether it contemplates only a time-specific incorporation.’”
29.
(Doe v. Saenz, supra, 140 Cal.App.4th at p. 981, quoting Jovan B., at p. 816; accord,
People v. Nash, supra, 52 Cal.App.5th at p. 1062; People v. Fong (2013) 217
Cal.App.4th 263, 267; People v. Frawley (2000) 82 Cal.App.4th 784, 794.) “[T]he
question turns on legislative intent in light of all relevant evidence.” (Frawley, at p. 794.)
We therefore conclude the dispositive inquiry is the intent of the Proposition 21
electorate. (See People v. Lee, supra, __ Cal.App.5th at p. __ [2022 Cal.App. LEXIS
624, *12] [analyzing whether the voters “contemplate[d] a time-specific incorporation of
the then-current version of section 186.22, subdivision (f), into the gang-murder special
circumstance statute”].)
The first step in determining voter intent is “to scrutinize the statute’s words,
assigning them their usual and ordinary meanings and construing them in the context of
the overall statutory scheme.” (People v. Spiller (2016) 2 Cal.App.5th 1014, 1021.) “If
the language of the statute allows for more than one reasonable interpretation, we will
look to ‘“‘other indicia of the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet.’”’” (Ibid., quoting People v. Briceno, supra, 34
Cal.4th at p. 459; accord, Robert L. v. Superior Court, supra, 30 Cal.4th at p. 906.) The
text of section 182.5 is not immediately helpful because its incorporation by reference of
section 186.22, subdivisions (e) and (f) does not alone establish a time-specific intent.
(See In re Jovan B., supra, 6 Cal.4th at p. 816; People v. Fong, supra, 217 Cal.App.4th at
pp. 266–267.) Because the reference is not made “in any time-specific way,” we look to
other indicators. (Doe v. Saenz, supra, 140 Cal.App.4th at p. 981.)
The Proposition 21 ballot materials “clearly show that the voters intended to
dramatically increase the punishment for all gang-related crime” (Robert L. v. Superior
Court, supra, 30 Cal.4th at p. 907), but they are virtually devoid of any references to the
enactment of section 182.5. The statute is indirectly mentioned in one sentence that
reads: “[Proposition 21] makes it easier to prosecute crimes related to gang recruitment,
expands the law on conspiracy to include gang-related activities, allows wider use of
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‘wiretaps’ against known or suspected gang members, and requires anyone convicted of a
gang-related offense to register with local law enforcement agencies.” (Voter Guide,
supra, analysis of Prop. 21 by Legis. Analyst, p. 46, italics added.) However, as the
recent Lee case observes, there is strong evidence of the voters’ intent in language they
used to amend certain provisions of the Three Strikes law. (People v. Lee, supra, __
Cal.App.5th at pp. __ [2022 Cal.App. LEXIS 624, *14-*15].)
Proposition 21 added section 667.1 to the Penal Code to read: “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 (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 Guide, supra, text of Prop. 21,
§ 14, p. 123, some italics omitted.) Section 1170.125 was likewise added to the Penal
Code to read: “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 Guide, supra, text of Prop. 21, § 16, p. 124, some italics
omitted.) By using time-specific language in both enactments, the voters “change[d] the
‘lock-in’ date for determining the existence of qualifying offenses (such as violent or
serious felonies) under the Three Strikes law.” (Manduley v. Superior Court, supra, 27
Cal.4th at p. 574.)
“‘The enacting body is deemed to be aware of existing laws and judicial
constructions in effect at the time legislation is enacted’ [citation], ‘and to have enacted
or amended a statute in light thereof’ [citation].” (People v. Blakely (2014) 225
Cal.App.4th 1042, 1052.) “‘This principle applies to legislation enacted by initiative.’”
(Ibid., quoting People v. Weidert (1985) 39 Cal.3d 836, 844; accord, Horwich v. Superior
Court (1999) 21 Cal.4th 272, 283 [referring to both “‘the drafters who frame an initiative
31.
statute and the voters who enact it’”].) Accordingly, and given the language used to
enact sections 14 and 16 of Proposition 21, we agree with Lee’s conclusion that “the
electorate clearly knew how to express the intent to freeze a statutory definition.”
(People v. Lee, supra, __ Cal.App.5th at p. __ [2022 Cal.App. LEXIS 624, *14].) The
absence of such time-specific language in section 182.5 leads to our rejection of the
People’s claim. (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’”]; see People v. Briceno,
supra, 34 Cal.4th at p. 459 [“‘In interpreting a voter initiative … we apply the same
principles that govern statutory construction’”].) As there is no evidence compelling a
different conclusion, we hold Assembly Bill 333’s amendments to section 186.22,
subdivisions (e) and (f) lawfully apply to section 182.5.
D. Section 1109*
At trial, the People preemptively moved in limine for a ruling that bifurcation of
the gang enhancement allegations was not appropriate because gang evidence was
necessary to prove the section 182.5 gang conspiracy charge. Over a defense objection,
the motion was granted. In light of Assembly Bill 333’s enactment of section 1109,
defendant claims the trial court erred by not bifurcating the trial proceedings on the gang
enhancement allegations and the gang conspiracy count.
As discussed above, section 1109 provides for bifurcated trial procedures in cases
involving gang charges under section 186.22. (§ 1109, subds. (a), (b).) Section 1109
does not refer to section 182.5. Whether section 1109 applies retroactively to nonfinal
cases is an issue currently pending before the California Supreme Court in People v. Tran
(S165998, argued May 25, 2022, submitted June 15, 2022). Whether section 1109 has
any application to section 182.5 has yet to be addressed by the appellate courts. We need
*See footnote, ante, page 1.
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not reach either issue because, even assuming defendant is correct on both arguments,
any error in failing to bifurcate the gang charges was harmless. Also, the gang
conspiracy count and gang enhancement allegations are the only charges subject to
retrial.
Relying on dicta in People v. Burgos (2022) 77 Cal.App.5th 550 at page 568 (rev.
granted July 13, 2022, S274743), defendant argues failure to bifurcate gang charges in
accordance with section 1109 is a structural error. Even in cases where this district has
held section 1109 applies retroactively, the Burgos dicta has been rejected as
unpersuasive. (E.g., People v. Montano (2022) 80 Cal.App.5th 82, 108; People v. Ramos
(2022) 77 Cal.App.5th 1116, 1131–1133 [concluding § 1109 error was harmless under
People v. Watson (1956) 46 Cal.2d 818, 836].) First, “[t]here is a strong presumption that
any error falls within the trial error category,” i.e., is not structural and thus “subject to
harmless error analysis.” (People v. Anzalone (2013) 56 Cal.4th 545, 554.) Second, the
right to bifurcation under section 1109 is purely statutory. (Cf. People v. Hinton (2006)
37 Cal.4th 839, 874 [describing right to a separate proceeding under § 190.1 as “merely
statutory, not constitutional”].) “‘Typically, a defendant who has established error under
state law must demonstrate there is a reasonable probability that in the absence of the
error he or she would have obtained a more favorable result.’” (Anzalone, at p. 553;
accord, People v. Epps (2001) 25 Cal.4th 19, 29 [where the error “is purely one of state
law, the Watson harmless error test applies”].)
Defendant alternatively claims the alleged error violated his constitutional due
process rights. We also disagree with this contention, but conclude the alleged error is
harmless under the standard of Chapman v. California (1967) 386 U.S. 18. As argued in
the People’s briefing, the evidence of defendant’s guilt on the counts that would have
been bifurcated from the gang charges was overwhelming.
The audio recordings, text messages, video surveillance evidence, and eyewitness
testimony clearly showed defendant’s participation in a criminal conspiracy and his
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attempt to commit the target offense of robbery. As for the firearm and ammunition
counts, defendant was recorded saying he and his crew were “stocked up” on weapons
and “strapped.” Law enforcement witnesses testified “strap” is a slang term for gun and
being “strapped” means to be armed with a gun. Defendant’s presence in a car
containing loaded firearms was conclusively established. There were five people in the
car, and police recovered five guns. It is evident, beyond a reasonable doubt, that failure
to bifurcate the gang charges did not affect the jury’s verdicts.
III. Retrial of Count 20*
Because Assembly Bill 333’s amendments to the definition of a criminal street
gang apply to section 182.5, count 20 must be reversed but is subject to retrial so long as
the evidence was sufficient to prove the alleged gang conspiracy at the time of
prosecution. (See People v. Lopez, supra, 73 Cal.App.5th at pp. 346–347; People v.
Rodriguez, supra, 75 Cal.App.5th at p. 823, fn. 19.) In his opening brief, defendant
argued the evidence was insufficient. The People agreed but argued for modification of
the judgment to reflect a conviction of a lesser included offense. Defendant conceded the
People’s argument contingent upon the outcome of a related jury instruction claim and
his separate challenge to the attempted robbery conviction. The claim of instructional
error, which we previously rejected, is now moot. We must determine whether, as the
parties contend, a conviction under section 182.5 can be based on a conspiracy to commit
attempted robbery.
A. Applicable Law
Section 182 proscribes the “traditional” form of criminal conspiracy. (People v.
Johnson (2013) 57 Cal.4th 250, 257, 261–262 (Johnson).) The offense is defined as an
agreement between two or more people to commit any crime, “together with proof of the
commission of an overt act ‘by one or more of the parties to such agreement’ in
*See footnote, ante, page 1.
34.
furtherance thereof.” (People v. Swain (1996) 12 Cal.4th 593, 600, quoting §§ 182, subd.
(a)(1), 184.) In this context, an overt act is “‘“an outward act done in pursuance of the
crime and in manifestation of an intent or design, looking toward the accomplishment of
the crime.”’” (Johnson, at p. 259, quoting People v. Zamora (1976) 18 Cal.3d 538, 549,
fn. 8.)
A traditional conspiracy does not require completion of the crime the conspirators
have agreed to commit. (People v. Swain, supra, 12 Cal.4th at p. 599.) “Once one of the
conspirators has performed an overt act in furtherance of the agreement, ‘the association
becomes an active force, it is the agreement, not the overt act, which is punishable.
Hence the overt act need not amount to a criminal attempt and it need not be criminal in
itself.’ [Citations.]” (Johnson, supra, 57 Cal.4th at p. 259.)
When section 182.5 was enacted by Proposition 21, it “created a new form of
conspiracy that is distinct from the traditional understanding of the crime ….” (Johnson,
supra, 57 Cal.4th at p. 261.) Our Supreme Court has identified five differences between
the two types of conspiracies. First, whereas a traditional conspiracy “encompasses a
stand-alone agreement by former strangers to commit a single crime,” a conviction under
section 182.5 requires proof the defendant is “an active gang participant with knowledge
of other members’ pattern of criminal gang activity.” (Johnson, at pp. 261–262.)
Second, a section 182.5 conspiracy “relates only to the commission of a felony.” (Id. at
p. 262.) Section 182 refers to “‘any crime’” and thus applies to conspiracies to commit
misdemeanors. (Ibid.)
“Third, traditional conspiracy requires both the specific intent to agree, and
specific intent to commit a target crime. [Citation.] A [section] 182.5 conspiracy does
not require any prior agreement among the conspirators to promote, further, or assist in
the commission of a particular target crime. Even without a prior agreement, an active
and knowing gang participant who acts with the required intent to promote, further, or
assist in the commission of a felony by other gang members can violate section 182.5.
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That act of assistance or promotion replaces the required prior agreement to commit a
crime that is ordinarily at the heart of a traditional conspiracy.” (Johnson, supra, 57
Cal.4th at p. 262.)
“Fourth, traditional conspiracy liability attaches once an overt act is committed. A
[section] 182.5 conspiracy requires the actual commission of felonious criminal conduct
as either an attempt or a completed crime.” (Johnson, supra, 57 Cal.4th at p. 262.)
“Fifth, section 182.5 brings within its ambit not only a gang member who promotes,
furthers, or assists in the commission of a felony. It also embraces an active and knowing
participant who merely benefits from the crime’s commission, even if he or she did not
promote, further, or assist in the commission of that particular substantive offense.”
(Ibid.)
B. Analysis
The verdict form for count 20 indicates defendant was convicted of “criminal
street gang conspiracy, to wit: robbery-in-concert, in violation of … sections 182.5,
212.5, and 213.” (Capitalization omitted.) However, as held in Johnson, the gang
conspiracy statute requires “the actual commission of felonious criminal conduct as either
an attempt or a completed crime.” (Johnson, supra, 57 Cal.4th at p. 262.) Since neither
he nor his fellow gang members committed an actual robbery, defendant claims the
evidence is insufficient to support the conviction.
The People agree with defendant but also contend the jury’s verdicts supported a
conviction of gang conspiracy based on the target offense of attempted home invasion
robbery. Defendant makes a qualified concession, stating “the possibility of reducing the
gang conspiracy offense to the lesser included offense of gang conspiracy to commit
attempted home invasion robbery would arise” if this court finds sufficient evidence to
support the count 163 conviction of attempted first degree robbery, which we have
already done.
36.
In a traditional conspiracy case, the defendant may be convicted of conspiring to
commit a lesser crime included in the alleged target offense. (See People v. Fenenbock
(1996) 46 Cal.App.4th 1688, 1706.) Attempted robbery is a lesser included offense of
robbery. (People v. Crary (1968) 265 Cal.App.2d 534, 540; see People v. Webster
(1991) 54 Cal.3d 411, 443.) However, case law holds that conspiracy to commit an
attempt crime “is a conclusive legal falsehood” and “nonexistent offense” because the
underlying agreement would contemplate nothing more than “an ineffectual act.”
(People v. Iniguez (2002) 96 Cal.App.4th 75, 79.) On the other hand, Johnson instructs
that section 182.5 “requires the actual commission of felonious criminal conduct as either
an attempt or a completed crime.” (Johnson, supra, 57 Cal.4th at p. 262, italics added.)
In Johnson, the California Supreme Court restated the holding of People v. Iniguez
as follows: “[U]nder a traditional conspiracy approach, one cannot conspire to try to
commit a crime. An agreement to commit a crime is required, even if nothing more than
an overt act is ultimately done.” (Johnson, supra, 57 Cal.4th at p. 264.) The high court’s
reference to the “traditional conspiracy approach” arguably suggests a different rule
applies to section 182.5. Although courts have long understood the essence of a
conspiracy to be the unlawful agreement (e.g., People v. Marsh (1962) 58 Cal.2d 732,
743), Johnson holds no such agreement is required to satisfy the elements of section
182.5. The “act of assistance or promotion replaces the required prior agreement to
commit a crime that is ordinarily at the heart of a traditional conspiracy.” (Johnson, at p.
262.) The People thus contend “it is possible to be guilty of a criminal street gang
conspiracy to commit an attempted offense.”
Based on Johnson and principles of stare decisis, we accept the parties’ position.
Section 182.5 requires proof of actual felonious conduct, and the evidence is insufficient
to establish commission of the alleged offense (first degree robbery) by defendant or his
fellow gang members. However, there is substantial evidence of defendant’s commission
of attempted first degree robbery, and that evidence satisfies the requirement of willful
37.
promotion, furtherance, and/or assistance in the commission of a felony. Defendant does
not dispute the sufficiency of the evidence as to the remaining elements of the crime.
Therefore, he may be retried on count 20 for a gang conspiracy based on the felonious
conduct of attempted first degree robbery.7
IV. Duplicative Convictions*
Counts 19 and 162 alleged conspiracy to commit home invasion robbery, i.e.,
traditional conspiracy liability under section 182, subdivision (a)(1). At trial, the People
argued the agreement to commit robbery at two locations constituted two separate
conspiracies. Defendant maintains the evidence showed only one conspiracy to commit
two robberies. The Attorney General concedes this issue, and we accept the concession
as appropriate. (See People v. Meneses (2008) 165 Cal.App.4th 1648, 1669 [“it is the
number of the agreements (not the number of the victims or number of statutes violated)
that determine the number of the conspiracies”]; People v. Lopez (1994) 21 Cal.App.4th
1551, 1557 [“‘One agreement gives rise to only a single offense, despite any multiplicity
of objects’”].) Therefore, count 162 will be reversed for insufficient evidence.
V. Sentencing Issues*
Defendant was sentenced to 35 years to life in prison for the count 19 conviction
of (traditional) conspiracy to commit home invasion robbery. The sentence was imposed
pursuant to section 186.22, subdivision (b)(4)(B), under which the punishment for a
gang-related home invasion robbery is 15 years to life, and section 182, subdivision (a),
under which conspiracy to commit a felony is “punishable in the same manner and to the
same extent as is provided for the punishment of that felony.” The base term was
7Shortly after our prior opinion in this case was issued, the Fourth Appellate District also
held “it is possible to be guilty of a gang conspiracy to commit an attempted offense.” (People v.
Ware (2020) 52 Cal.App.5th 919, 946 (rev. granted on a different issue Dec. 9, 2020, S263923).)
*See footnote, ante, page 1.
*See footnote, ante, page 1.
38.
doubled because of a prior strike and increased by five years because of a prior serious
felony conviction.
A consecutive 19-year prison sentence was imposed for count 163 (attempted
home invasion robbery), which represented one-half of the upper term of nine years
(§§ 213, subd. (a)(1)(A), 664, subd. (a)) doubled for the prior strike and increased by a
five-year gang enhancement (§ 186.22, subd. (b)(1)(B)) and the five-year prior serious
felony conviction enhancement (§ 667, subd. (a)). Punishment on all other counts was
either stayed or ordered to be served concurrently. The two prior prison term
enhancements (§ 667.5, former subd. (b)) were ordered stayed pursuant to section 654.
A. Punishment Under Section 186.22
In People v. Lopez, supra, 12 Cal.5th 957, the California Supreme Court
determined the alternate penalties mandated by section 186.22, subdivision (b)(4) are
reserved “for individuals convicted of the completed target offenses” specified therein
and do not apply to conspiracy convictions. (Lopez, at p. 975.) On remand, defendant
will “face up to nine years in prison” for conspiring to commit home invasion robbery,
“with a serious felony enhancement of an additional five years [citations], as well as any
additional punishment that might be applicable by operation of other enhancement
provisions.” (Ibid.) If the People elect to retry the section 186.22 enhancement
allegations and they are found true, Lopez holds “[t]he most natural reading of
Proposition 21 is that voters intended for conspiracies to commit gang-related robberies
to be punished by an additional five years of imprisonment [under section 186.22,
subdivision (b)(1)(B)].” (Id. at p. 973; see id. at p. 972 [citing § 186.22, subd.
(b)(1)(B)].) If the People elect to retry count 20, i.e., the gang conspiracy charge, and
defendant is convicted, he “may be punished as specified in subdivision (a) of Section
182.” (§ 182.5.)
39.
B. Senate Bill No. 1393
On September 30, 2018, the Governor approved Senate Bill No. 1393 (2017–2018
Reg. Sess.) (Senate Bill 1393), which amended sections 667 and 1385. The legislation
went into effect on January 1, 2019. (Stats. 2018, ch. 1013, §§ 1–2.) As a result, trial
courts now have discretion under section 1385 to strike or dismiss the five-year
sentencing enhancement prescribed by section 667, subdivision (a) for prior serious
felony convictions. Senate Bill 1393 applies retroactively in cases such as this one.
(People v. Stamps (2020) 9 Cal.5th 685, 699.) Therefore, at the time of resentencing on
remand, the trial court shall consider whether to exercise its discretion to strike any of the
prior serious felony conviction enhancements.
C. Miscellaneous Issues
The parties identify an error in the abstract of judgment regarding the number of
prior serious felony conviction enhancements imposed at sentencing. Since resentencing
will occur on remand, a new abstract of judgment will be prepared. Therefore, the issue
is moot.
The parties do not discuss the prior prison term enhancements, but we note the
trial court erred by staying the punishment for those enhancements. When an allegation
based on section 667.5, former subdivision (b) is found to be true, the trial court must
either impose the additional prison term or strike the enhancement. (People v. Langston
(2004) 33 Cal.4th 1237, 1241.) More importantly, effective January 1, 2020, the one-
year enhancement provided for in section 667.5, former subdivision (b) is inapplicable to
all prior prison terms except those served for a sexually violent offense within the
meaning of Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch.
590, § 1.)
Senate Bill No. 483 (2021–2022 Reg. Sess.), which took effect January 1, 2022,
reflects “the intent of the Legislature to retroactively apply … Senate Bill 136 of the
2019–2020 Regular Session to all persons currently serving a term of incarceration in jail
40.
or prison for these repealed sentence enhancements.” (Stats 2021, ch. 728, § 1.) Newly
enacted section 1171.1 thus provides: “Any sentence enhancement that was imposed
prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”
(§ 1171.1, subd. (a).) We leave it to the parties to address this issue on remand.
DISPOSITION
Count 162 is reversed for insufficient evidence. Count 20 and all enhancement
findings under section 186.22, subdivision (b), are reversed but subject to retrial.
Defendant’s sentence is ordered vacated and the matter is remanded for further
proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
PEÑA, J.
WE CONCUR:
FRANSON, Acting P.J.
SMITH, J.
41.