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California Supreme Court:
Initiative Wasn’t Defied by Law Redefining ‘Street Gang’
By a MetNews Staff Writer
The California Supreme Court held yesterday that a prohibition in Proposition 21 against altering its terms except by voters or by a two-thirds vote of both the Assembly and the Senate was not breached by legislation narrowing the definition of “street gang,” rendering applicable to fewer defendants its requirement of the death penalty or life imprisonment without possibility of parole where there is a murder with a gang enhancement.
Justice Goodwin H. Liu wrote the opinion for a unanimous court.
Proposition 21— the Gang Violence and Juvenile Crime Prevention Act of 1998—was approved by voters in 2000. Under it, Penal Code §190.2(a)(22) prescribes the death penalty where the defendant “intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.”
Assembly Bill 333, amending §186.22, was passed the Legislature—but not by a supermajority. It was signed into law on Oct. 8, 2021 and became effective Jan. 12, 2022.
Fifth District’s View
Liu’s opinion reverses the June 29, 2022 decision by the Fifth District Court of Appeal holding that AB 333 “is unconstitutional to the extent it would amend” Proposition 21.
Justice Charles Poochigian wrote for the Fifth District’s majority:
“Because Assembly Bill 333 ‘takes away’ from the scope of conduct that Proposition 21 made punishable under section 190.2, it is an amendment. While the Legislature was free to amend Proposition 21 in this fashion, it could only do so with a two-thirds vote in each house. (Prop. 21, § 39.) Assembly Bill 333 did not comply with that requirement and therefore cannot amend Proposition 21.”
Liu’s Opinion
Rejecting that view, Lui declared:
“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.”
Fernando Rojas in 2019 was found guilty of a murder in the first degree and the alleged special circumstance of the slaying having been for gang purposes was found to be true, and he was sentenced by Kern Superior Court Judge John W. Lua to life imprisonment.
While his appeal was pending, AB 333 was enacted. Last year, the California Supreme Court held that it applies retroactively.
Courts of appeal took varying positions as to whether AB 333’s provision narrowing circumstances where a gang enhancement can be imposed is valid.
Supermajority Proviso Inapplicable
In his opinion resolving the matter, Liu pointed out that Proposition 21 “did not amend section 186.22(f)’s definition of ‘criminal street gang’ and instead technically reenacted it without substantive change” and that “[i]t follows that the Legislature is free to revise section 186.22(f) independent of the supermajority requirement in Proposition 21 itself unless the reenacted provision” thwarts the purposes of the initiative.
He wrote that “voters who enacted Proposition 21 did not specify that the cross-reference to section 186.22(f) was intended to lock in the contemporary definition,” adding:
“The voters chose to define the term ‘criminal street gang’ by reference to the existing statute, section 186.22(f), which had been amended several times by the Legislature before Proposition 21. In so doing, the voters incorporated a definition that they knew was both changeable and had been repeatedly subject to change.”
Purpose Not Circumvented
Liu went on to say:
“…Assembly Bill 333 does not intrude upon the purpose of Proposition 21. The purpose of Proposition 21 was to heighten the penalties for gang activity and other violent crimes. While narrowing the definition of ‘criminal street gang,’ Assembly Bill 333 does not change the punishment for those convicted of the gang-murder special circumstance.”
The Office of Attorney General acknowledged that if AB 333 is applied, the finding as to the special circumstance must fall, and the opinion orders that it be vacated.
The case is People v. Rojas, 2023 S.O.S. 3781.
Copyright 2023, Metropolitan News Company