THE PEOPLE, Plaintiff and Respondent, v. FERNANDO ROJAS,
S275835
IN THE SUPREME COURT OF CALIFORNIA
December 18, 2023
Fifth Appellate District F080361 Kern County Superior Court BF171239B
Justice Liu authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Kruger, Groban, Jenkins, and Evans concurred.
PEOPLE v. ROJAS
S275835
In 2000, California voters adopted Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998 (Proposition 21). Proposition 21 added the gang-murder special circumstance, codified at
The definition of a “criminal street gang” in
The issue before us is whether applying this recent legislative enactment, Assembly Bill 333, to the gang-murder special circumstance in
I.
In 2019, Fernando Rojas and his codefendant Victor Nunez were found guilty of deliberate, premeditated murder (
In 2021, while Rojas‘s appeal was pending, the Legislature passed Assembly Bill 333, enacting the STEP Forward Act of 2021. (Stats. 2021, ch. 699, § 1.) “Assembly Bill 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized association or group of three or more persons.’ (
In Tran, we held that Assembly Bill 333‘s amendments to
The Court of Appeal reasoned that Assembly Bill 333, as applied to the gang-murder special circumstance, is unconstitutional because it would “‘take[] away’ from the scope of conduct that Proposition 21 made punishable under section 190.2” and was not passed by a supermajority vote. (Rojas, supra, 80 Cal.App.5th at p. 555.) The court further explained that Proposition 21‘s increase in the punishment for certain gang-related murders was “definitionally and conceptually inseparable” from the gang conduct defined in section 186.22. (Rojas, at p. 556.) Therefore, applying Assembly Bill 333‘s revised definition of a criminal street gang to the gang-murder special circumstance would be unconstitutional, even though Assembly Bill 333 did not reduce the penalty established by Proposition 21‘s gang-murder special circumstance. (Rojas, at p. 556Id. at p. 557.)
Justice Snauffer dissented on this issue, observing that the voters who passed Proposition 21 were concerned only with “increasing the punishment for certain gang-related murders,” not with the underlying definition of any crime. (Rojas, supra, 80 Cal.App.5th at p. 561 (conc. & dis. opn. of Snauffer, J.).) In his view, Proposition 21‘s voters “‘got, and still have, precisely what they enacted — stronger sentences for persons convicted of [gang-related special-circumstance] murder.‘” (Rojas, at p. 560, quoting People v. Superior Court (Gooden) 42 Cal.App.5th 270, 289 (Gooden).)
We granted review to decide whether Assembly Bill 333‘s application to the gang-murder special circumstance unconstitutionally amends Proposition 21.
II.
“The Legislature may not amend an initiative statute without subsequent voter approval unless the initiative permits such amendment, ‘and then only upon whatever conditions the voters attached to the Legislature‘s amendatory powers.‘” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568 (Pearson); see
“We have described an amendment as ‘a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.’ [Citation.] But this does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative‘s provisions, is necessarily an amendment for these purposes. ‘The Legislature remains free to address a “related but distinct area“’ [citations] or a matter that an initiative measure ‘does not specifically authorize or prohibit.“‘” (Pearson, supra, 48 Cal.4th at p. 571.)
“When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative‘s language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters’ intent and understanding of a ballot measure.” (Pearson, supra, 48 Cal.4th at p. 571.)
A.
California voters enacted Proposition 21 in 2000, increasing the penalties for certain gang-related felonies. As relevant here, Proposition 21 created the
An uncodified provision of Proposition 21 states that the provisions of the initiative “shall not be amended by the Legislature except by a statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, or by a statute that becomes effective only when approved by the voters.” (Voter Information Guide, Primary Elec., supra, text of Prop. 21, § 39, p. 131.) Assembly Bill 333 did not receive two-thirds support in either house (Sen. Daily J. (Sept. 1, 2021) p. 2284 [25 of 40 members voted in favor]; Assem. Daily J. (Sept. 8, 2021.) p. 2927 [41 of 80 members voted in favor]; see
Although Proposition 21 amended
The Attorney General argues that applying Assembly Bill 333‘s amendment to
B.
We begin with the text of the initiative statute. We have said that “‘where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified, and that the repeal of the provisions referred to does not affect the adopting statute, in the absence of a clearly expressed intention to the contrary.‘” (Palermo v. Stockton Theatres (1948) 32 Cal.2d 53, 58–59 (Palermo); see generally Jam v. International Finance Corp. (2019) 586 U.S. __, __ [139 S.Ct. 759, 769] [referring to this principle of statutory construction as the “reference’ canon“].) At the same time, “there is a cognate rule . . . to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time. . . .‘” (Palermo, at p. 59.)
While Palermo sets forth the general rule above, it also makes clear that the presence or absence of language referring specifically to a statutory or regulatory provision is not necessarily dispositive. At issue in Palermo was the California Alien Land Act (Stats. 1921, p. lxxxiii, as amended by Stats. 1923, p. 1021), which referred to “‘any treaty now existing‘” at the time of the act‘s enactment by the electorate. (Palermo, supra, 32 Cal.2d at p. 59.) Palermo reasoned that “in view of the fact that there is grave doubt whether our Legislature could constitutionally delegate to the treaty-making authority of the United States the right and power thus directly to control our local legislation with respect to future acts [citations], we are constrained to hold that the reference is specific and not general‘” (id. at pp. 59–60), even though the act did not refer to any specific treaty. We have observed that “[s]everal modern decisions have applied the Palermo rule, but none have done so without regard to other indicia of legislative intent.” (In re Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10 (Jovan B.); see id. at p. 816 [“‘the determining factor will be . . . legislative intent‘“].)
Jovan B. went on to consider the purpose of the amendment of
Here, as in Jovan B., the words of the incorporating statute “do not make clear whether it contemplates only a time-specific incorporation.” (Jovan B., supra, 6 Cal.4th at p. 816.) The initiative‘s uncodified findings and declarations state: “Gang-related crimes pose a unique threat to the public because of gang members’ organization and solidarity. Gang-related felonies should result in severe penalties. Life without the possibility of parole or death should be available for murderers who kill as part of any gang-related
The Attorney General argues that the provisions at issue in Jovan B. are “materially different” from those at issue here because Proposition 21 refers “to a specific code section and subdivision defining a particular term” in contrast to the “general incorporation of an entire body or system of laws as in Jovan B.” But
Of course, it is the electorate‘s prerogative to give the term “criminal street gang” a fixed meaning if it chooses, regardless of how the Legislature may
Sections 14 and 16 of Proposition 21 amended portions of the existing “Three Strikes Law.” Section 14 added
Sections 14 and 16, by their terms, “change[d] the ‘lock-in’ date for determining the existence of qualifying offenses (such as violent or serious felonies) under the Three Strikes law. Thus, before the passage of Proposition 21, references to existing statutes, such as the law defining violent felonies, in
The Attorney General says these provisions “were necessary to convey the electorate‘s intent that
In People v. Fletcher (2023) 92 Cal.App.5th 1374, 1379–1382, review granted September 20, 2023, S281282, the Court of Appeal held that the narrower definition of “criminal street gang” in Assembly Bill 333 cannot be applied to determine what constitutes a serious felony for purposes of the Three Strikes Law without running afoul of the limits on legislative amendment set forth in both Proposition 21 and a 2012 initiative, Proposition 36 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)). We do not decide that issue here. We simply observe that the text of Proposition 21 shows the voters understood that cross-referenced statutes may evolve, and they knew how to lock in the meaning of a cross-referenced statute. Yet the voters chose not to do so with respect to the gang-murder special circumstance. (Cf. Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [“When the Legislature ‘has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.‘“].)
C.
The Attorney General‘s primary argument is that application of Assembly Bill 333 would frustrate the voters’ intent by narrowing the scope of conduct covered by the gang-murder special circumstance, thereby “taking away” from Proposition 21. In this context, we have described an amendment as “a legislative act designed to change an existing initiative statute by adding or taking from it some particular provision.” (People v. Cooper (2002) 27 Cal.4th 38, 44.) To determine whether Assembly Bill 333 impermissibly takes away from Proposition 21, “we must decide what the voters contemplated.” (Pearson, supra, 48 Cal.4th at p. 571; see Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [“the voters should get what they enacted, not more and not less“].)
The Attorney General says application of Assembly Bill 333 here conflicts “with the electorate‘s manifest intent to substantially augment protections against violent gang crime, including by punishing more harshly ‘murderers who kill as part of any gang-related activity’ [(Prop. 21, § 2, subd. (h))].” He adds, “It would be strange, in light of that intent, to conclude that the electorate also understood that the Legislature was free to narrow — in potentially significant ways — the scope of the protections that Proposition 21
As originally enacted, the STEP Act defined “criminal street gang” to mean “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (7), inclusive, of subdivision (c), which has a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Former
Rather, when the voters adopted Proposition 21 twelve years after the STEP Act was first enacted, they made clear that their purpose was to more severely punish crimes that are gang-related as opposed to crimes that are not gang-related. As noted, the text declares in relevant part that “[g]ang-related felonies should result in severe penalties. Life without the possibility of parole or death should be available for murderers who kill as part of any gang-related activity.” (Voter Information Guide, supra, text of Prop. 21, § 2, subd. (h), p. 119.) The proponents of Proposition 21 emphasized its focus on
The purpose of Assembly Bill 333 further confirms that its application here poses no inconsistency with the voters’ intent in enacting Proposition 21. By the time the Legislature took up Assembly Bill 333 in 2021, California had more than three decades of experience under the STEP Act. The Legislature was motivated by that experience to narrow the definition of criminal street gang in order to focus on “true gang-related crimes,” having determined that “in practice the original definition of a criminal street gang was not narrowly focused on punishing true gang-related crimes.” (Lee, supra, 81 Cal.App.5th at p. 245, rev.gr.) Assembly Bill 333 did not change the punishment associated with gang crimes, including the punishment of death or life without the possibility of parole for individuals convicted of the gang-murder special circumstance. Instead, consistent with the intent of Proposition 21 to severely punish gang-related crimes, the Legislature in Assembly Bill 333 “redefined the term ‘criminal street gang’ so as to truly target the population of criminals for which an enhanced punishment is warranted.” (Lee, at p. 245; see Assem. Com. on Public Safety, Analysis of Assem. Bill 333, as amended Mar. 30, 2021, p. 4 [Assembly Bill 333 “‘ensur[es] gang enhancements are only used when necessary and fair‘“].)
The Attorney General argues that this case is similar to People v. Kelly (2010) 47 Cal.4th 1008, where we considered whether an aspect of the legislatively enacted Medical Marijuana Program (MMP) impermissibly amended the Compassionate Use Act enacted by the voters. The Compassionate Use Act of 1996 (
Unlike the legislation at issue in Kelly, Assembly Bill 333 does not intrude upon the purpose of Proposition 21. The purpose of Proposition 21 was to heighten the penalties for gang activity and other violent crimes. While narrowing the definition of “criminal street gang,” Assembly Bill 333 does not change the punishment for those convicted of the gang-murder special circumstance. (See Lee, supra, 81 Cal.App.5th at p. 244, rev.gr. [applying Assembly Bill 333 here “does not change the punishment for ‘murderers who kill as part of any gang-related activity,’ the relevant purpose of Proposition 21“].)
Gooden, supra, 42 Cal.App.5th 270, is instructive on this point. There, the Court of Appeal held that Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which amended the mens rea for murder was not an impermissible amendment of Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) (Proposition 7), which increased the punishment for murder, or Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)), which expanded the list of predicate offenses for the felony-murder rule. Gooden rejected the Attorney General‘s argument that Senate Bill 1437 amended Proposition 7 by taking away from the scope of conduct that constitutes murder punishable by the increased punishments specified in the initiative. (Gooden, at p. 281 Senate Bill 1437 addressed only the mental state required to commit murder. (Gooden, at p. 282.) “Senate Bill 1437 did not address the same subject matter” as Proposition 7; rather, it “presents a classic example of legislation that addresses a subject related to, but distinct from, an area addressed by an initiative.” (Gooden, at p. 282; accord, People v. Nash (2020) 52 Cal.App.5th 1041, 1059 [“While the class of individuals standing convicted of murder may be reduced in light of Senate Bill No. 1437‘s changes to the felony-murder rule and the natural and probable consequences doctrine, the legislation does not change or take away from the sentences those convicted of murder are subject to, which is the mandate of Proposition 7.“].)
Gooden‘s distinction between the electorate‘s focus on punishment and the Legislature‘s focus on the substantive elements of an offense applies here. The voters who enacted Proposition 21 wanted to harshly punish the members and activities of a “criminal street gang,” but there is no indication that the voters had in mind a fixed meaning of the term. Murder committed
The Attorney General further notes that on several prior occasions in which the Legislature amended portions of section 186.22, the Legislative Counsel advised that the amendment required approval by two-thirds of each house. (See Legis. Counsel‘s Dig., Sen. Bill No. 444 (2005–2006 Reg. Sess.) 4 Stats. 2005, ch. 482, Summary Dig., p. 235 [“Existing law authorizes the Legislature to amend these provisions with a 2/3 vote of each house.“]; Legis. Counsel‘s Dig., Sen. Bill No. 1222 (2005–2006 Reg. Sess.) 6 Stats. 2006, ch. 596, Summary Dig., p. 333 [same].) But “the Legislature‘s views regarding the legality of its enactments are not binding on the judiciary.” (People v. Lopez (2022) 82 Cal.App.5th 1, 21, fn. 5; see Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244.) In any event, “‘[t]he Legislature remains free to address a “related but distinct area“’ [citations] or a matter that an initiative measure ‘does not specifically authorize or prohibit.“‘” (Pearson, supra, 48 Cal.4th at p. 571.)
Finally, we observe that the Attorney General does not argue against application of the amended definition of “criminal street gang” in all contexts, but only when applied to the gang-murder special circumstance. On this view, the narrower definition of Assembly Bill 333 would apply in all other circumstances, effectively making it easier to prove gang allegations for the purposes of imposing the death penalty or life imprisonment without the possibility of parole, and more difficult to impose the less serious consequences that flow from violations of section 186.22 itself. As one court has observed, “[i]t is difficult to discern a rational reason for such an anomalous choice.” (Lee, supra, 81 Cal.App.5th at p. 242, rev.gr.)
D.
The Attorney General relies on three cases applying the Palermo rule, but none supports a different result here. First, the Attorney General says the specific reference in Proposition 21 to
It is true that Proposition 21, like the statute at issue in Domagalski, refers to a specific subdivision of section 186.22 to define “criminal street gang.” That subdivision, however, contains the entirety of the
The same is true of In re Oluwa (1989) 207 Cal.App.3d 439 (Oluwa), in which the Court of Appeal considered whether an inmate was subject to the custody credit calculation established by the voters through Proposition 7 or whether he was entitled to invoke more generous credit provisions later enacted by the Legislature. Proposition 7 contained a statement that “‘[t]he provisions of Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code [article 2.5] shall apply‘” in calculating custody credit for sentences like the inmate‘s in Oluwa. (Oluwa, at p. 442Oluwa, article 2.5 contained three sections governing custody credit calculation at the time Proposition 7 was passed; the custody credits at issue were enacted as separate sections of article 2.5. (Oluwa, at p. 443.)
The Attorney General points to Oluwa‘s statement that Proposition 7 was “not a reference to a system or body of laws or to the general law relating to the subject at hand,” but rather was “a specific and pointed reference to an article of the Penal Code . . . at the time Proposition 7 incorporated article 2.5 into section 190.” (Oluwa, supra, 207 Cal.App.3d at p. 445Oluwa did not rest on a specific reference to article 2.5; rather, the court emphasized that the accompanying legislative analysis “advised voters that those persons sentenced to 15 years to life in prison would have to serve a minimum of 10 years before becoming eligible for parole” as provided in article 2.5 at the time Proposition 7 was adopted. (Oluwa, at p. 445Oluwa explained that allowing inmates like Oluwa to benefit from subsequent amendments that would reduce that minimum specifically presented to the voters would frustrate the voters’ intent and constitute an impermissible legislative amendment of the initiative. (Id. at p. 446.) Here, by contrast, we have no similar representation in the ballot materials accompanying Proposition 21 that applies or even mentions a specific definition of “criminal street gang,” and thus no basis to infer that the voters intended to lock in such a definition.
The Attorney General also cites People v. Anderson (2002) 28 Cal.4th 767, which concerned the proper interpretation of section 26, a statute precluding duress as a defense to crimes “punishable with death.” When section 26‘s predecessor was first enacted, this category of crimes included all forms of murder. The defendant argued that because only first degree murder with special circumstances is so punishable today, duress should constitute a defense to all forms of murder except first degree murder with special circumstances. (Anderson, at p. 773Anderson, at pp. 775, 780; see id. at pp. 774-778.)
The Attorney General says “the reference [in Proposition 21] is even more specific than the reference at issue in Anderson.” This argument appears to draw the wrong lesson from Anderson. Anderson illustrates that a statutory reference that appears to be general can, upon inquiry into legislative intent, turn out to be specific. This case shows the reverse also can be true: the statutory reference in section 190.2 may appear specific, but the relevant indicia of voter intent show that the reference is general.
We conclude that applying Assembly Bill 333‘s definition of “criminal street gang” to the gang-murder special circumstance does not unconstitutionally amend
We reverse the judgment below and remand for further proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rojas
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 80 Cal.App.5th 542
Review Granted (unpublished)
Rehearing Granted
Opinion No. S275835
Date Filed: December 18, 2023
Court: Superior
County: Kern
Judge: John W. Lua
Counsel:
Sharon G. Wrubel, under appointment by the Supreme Court, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell and Susan Sullivan Pithey, Assistant Attorneys General, Dana Muhammad Ali, Idan Ivri, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, Amanda D. Cary, William K. Kim and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Kent S. Scheidegger and Kymberlee C. Stapleton for the Criminal Justice Legal Foundation as Amicus Curiae on behalf of Plaintiff and Respondent.
Gregory D. Totten for the California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sharon G. Wrubel
Attorney at Law
P.O. Box 1240
Pacific Palisades, CA 90272
(310) 459-4689
Stacy S. Schwartz
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 269-6099