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California Supreme Court:
Current Law Governs Whether Gang Priors Count as Strikes
Majority Says Past Convictions Must Be Analyzed Under Recent Amendments to Penal Code §186.22, Drawing Dissent Asserting That Decision Effectively Nullifies Decades of Judgments From Enhanced Sentences
By Kimber Cooley, associate editor
A divided California Supreme Court held yesterday, in a 4-3 decision, that, for all non-final judgments, whether a prior conviction for a gang-related offense will qualify as a “strike” depends on current statutory definitions enacted in 2022 to narrow what counts as a criminal street enterprise and related activities.
At issue is whether a prior conviction counts as a “serious” or “violent” felony under California’s so-called “Three Strike” law, codified at Penal Code §667, which provides for harsher penalties for those with qualifying criminal histories.
Serious felonies are enumerated in Penal Code §1192.7(c), and subdivision (28) includes “any…offense, which would also constitute a felony violation of” the gang statute, found at §186.22.
In an opinion authored by Justice Goodwin H. Liu, and joined in by Justices Leondra Kruger, Joshua P. Groban, and Kelli Evans, the court said that Assembly Bill 333—which amended the elements of gang offenses and enhancements found at Penal Code §186.22 as of Jan. 1, 2022—applies retroactively for purposes of determining if a past conviction qualifies under the “Three Strikes” law and one governing enhancements for prior serious felonies.
Liu noted that the question “has divided the Courts of Appeal” and wrote:
“Although the relevant statutes are not paragons of clarity, we conclude that where a defendant has suffered a conviction under the prior version of section 186.22, Assembly Bill 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction…for purposes of the Three Strikes law and prior serious felony enhancements. And it applies to the case before us because [the defendants’] judgments are not yet final.”
Dissenting, Chief Justice Patricia Guerrero argued:
“The majority today holds that a prior conviction for a gang-related felony cannot support an increased sentence under the ‘Three Strikes’ law or the prior serious felony enhancement statute unless the prior conviction satisfies current law defining a gang-related offense. This novel standard is virtually impossible to meet, and it will nullify decades of prior convictions that would otherwise support enhanced sentences for repeat felony offenders.” Justices Carol Corrigan and Martin J. Jenkins joined in the dissent.
Attempted Murder
The question arose after defendants Larry Fletcher and Eric Taylor Jr. were convicted of attempted first-degree murder, among other charges, relating to a December 2020 shooting outside of a Hemet liquor store. Each defendant had a prior conviction, dated 2015, for unlawful possession of a firearm with an additional finding that the crime was committed for the benefit of a criminal street gang, within the meaning of §186.22(b)(1)(A).
Although the possession charge would not, by itself, be a prior serious felony, the gang enhancement under §186.22(b)(1)(A) qualified it as a strike under §1192.7(c)(28).
Retired San Diego Superior Court Judge Louis R. Hanoian, sitting on the Riverside Superior Court by assignment, sentenced Fletcher to 56 years to life in prison, which included a doubling of the upper term on the attempted murder charge pursuant to the Three Strikes penalty scheme and a five-year enhancement due to his prior serious felony. Taylor, who had an additional strike prior, was sentenced to 100 years to life imprisonment. The cases were jointly on appeal when Assembly Bill 333 went into effect.
Div. Two of the Fourth District Court of Appeal noted that the Three Strikes penalty scheme was adopted by way of a voter-approved measure, and held that applying the 2022 changes to disqualify serious felony and strike priors “would constitute an improper legislative amendment of a ballot initiative.”
Pending Appeal
Liu noted that the high court has previously held that AB 333’s changes to the elements of gang offenses and enhancements “are retroactive” in all cases “that were pending on appeal” when the law went into effect. Based on this principle, the defendants argue that the prosecution must prove that their 2015 prior convictions qualify as “serious” felonies under the current version of §186.22.
Addressing this contention, the jurist noted that Courts of Appeal have focused on “two features of the Three Strikes law”—a so-called “lock-in” provision and the “determination clause.”
As originally enacted, the “lock-in” provision provided that “[a]ll references to existing statutes” in §1192.7(c) “are to statutes as they existed on June 30, 1993.”
Proposition 21 changed the date to March 8, 2000, in order to capture additional crimes added to the serious felony list after 1993, and Proposition 36 updated the lock-in date to Nov, 7, 2012 for offenses committed on or after that date.
Rejecting the view that the court’s interpretation ran afoul of these initiatives, Liu said:
“The lock-in provision…regulates the timing by which offenses added to the serious felony list become available to be alleged as strikes…..[W]e find unpersuasive the Court of Appeal’s reasoning that the lock-in provision locks in not only the list of serious felonies in section 1192.7(c) but also the elements of those felonies as they existed on the lock-in date.”
Determination Clause
Turning to the determination clause, he noted that Proposition 36 amended Penal Code §667(d)(1) to include the phrase “serious or violent.” It currently provides:
“The determination of whether a prior conviction is a prior serious or violent felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.”
Liu acknowledged that some Courts of Appeal have interpreted the section as compelling the conclusion that the determination of whether a prior offense qualifies as a strike is fixed upon the date of the prior conviction. Unpersuaded, he opined that the matter was not settled by looking just to the plain language of the section, remarking:
“[T]extual clues cast some doubt on whether the electorate intended to effect a substantive change in the law when it added the words ‘serious or violent’ to the determination clause….That doubt is heightened by the fact that determining whether a prior felony is serious or violent by reference to the date of conviction would depart sharply from what a well-established body of case law had held—i.e., that the determination is to be made by reference to the enumerated list of serious felonies and violent felonies on the lock-in date applicable to a defendant’s current offense….If the determination clause were construed to require characterization of a prior felony as serious or violent by reference to the date of the prior conviction, it would be at odds with how the lock-in provision has long been understood.”
Neither Provision
Saying that “either the lock-in provision nor the determination clause tells us…whether…current law or the law in effect at the time of a prior offense…applies to proving the elements of an alleged strike prior,” he turned to §1192.7(c)(28) for guidance and concluded:
“[The section] employs the present conditional tense in naming ‘any felony offense, which would also constitute a felony violation of Section 186.22.’ The phrase ‘would also constitute’…suggests an inquiry under current law. If the provision had been written to say ‘any felony offense, which also constituted a felony violation of Section 186.22’ or ‘any felony offense, which also was a felony violation of Section 186.22,’ the proper inquiry might well be backward looking. But that is not the language the voters chose.”
He added:
“General assertions about the backward-looking nature of antirecidivist laws do not take precedence over the statutory provisions that govern whether a prior conviction is a strike.”
Guerrero’s Dissent
Guerrero argued that “[t]he electorate locked in the list of serious felonies as of a certain date, thereby ensuring that future legislative enactments could not remove an identified felony from the list” and reasoned:
“The majority eschews this straightforward analysis and embraces an obscure syntactical argument that no party has raised. The majority observes that the statute identifying a gang-related felony as a serious felony offense is phrased in the present conditional tense…..The majority tepidly explains that this phrasing ‘suggests an inquiry under current law,’ and it contrasts this phrasing with hypothetical phrasing in the past tense.”
Saying that this reasoning “does not withstand scrutiny,” she also critiqued the standard for being “virtually impossible to meet.” The chief justice commented:
“Determining the nature of the prior conviction can only be done by reference to the facts that ‘were necessarily found or admitted in the prior proceeding.’…It could never reflect a fact that was later added as a required element of an offense or statutory violation….Under the majority’s holding today, any felony conviction for a violation of section 186.22 that predates the recent amendments to the statute can no longer qualify as a prior serious felony conviction for purposes of the Three Strikes law or the enhancement statute.”
The case is People v. Fletcher, 2025 S.O.S. 2467.
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