II. DISCUSSION
Our analysis begins with a review of the pertinent statutes and how they have been construed. We then consider their application to this case. We conclude that defendant's street terrorism conviction should have been dismissed in the full resentencing that defendant must receive under Proposition 47.
A. Relevant Statutes and Case Law
1. The Crime of Street Terrorism under Section 186.22, Subdivision (a)
The Legislature originally enacted section 186.22 in 1988 as part of the California Street Terrorism Enforcement and Prevention Act, also known as the "STEP Act." (§ 186.20 et seq.) The STEP Act declares that "[i]t is the intent of the Legislature in enacting this [measure] 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." (§ 186.21, 2d par.)
Although defendant was charged under two different provisions of the STEP Act, only one of these allegations is presently at issue. The relevant crime is set forth in section 186.22, subdivision (a), which provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal *656gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." *422"The gravamen of the substantive offense set forth in section 186.22 [, subdivision] (a) is active participation in a criminal street gang." ( People v. Albillar (2010)
The third element of the street terrorism crime is most squarely at issue here. In analyzing this component of the crime, our prior case law has articulated several principles relevant to the present case. "[M ]isdemeanor conduct ... cannot constitute 'felonious criminal conduct' within the meaning of" this element. ( People v. Lamas (2007)
**901( People v. Castenada (2000)
2. Relevant Provisions of Proposition 47
Proposition 47 altered prior law in several important respects. Among these changes, the initiative amended various provisions of the Health and Safety Code and the Penal Code to reclassify as misdemeanors certain narcotics and theft offenses that had been denominated either felonies or "wobblers" (i.e., crimes capable of being charged as either felonies or misdemeanors). The initiative created a procedure through which persons serving a sentence for a qualifying felony may petition to have the conviction reclassified as a misdemeanor. (§ 1170.18, subds. (a), (b).) Persons convicted of certain offenses are ineligible for resentencing. (Id ., subd. (i).) An eligible petitioner shall have his or her sentence recalled and be resentenced to a misdemeanor, "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Id ., subd. (b).) Through a separate procedure, a person who already has completed his or her sentence for a qualifying felony also may have the underlying conviction redesignated as a misdemeanor. (Id ., subds. (f)-(h).)
*423Section 1170.18 further provides that "[a] felony conviction that is recalled and resentenced ... or designated as a misdemeanor ... shall be considered a misdemeanor for all purposes, except that resentencing shall not permit that person to *657own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under [various statutes prohibiting possession of a firearm under certain circumstances]." (§ 1170.18, subd. (k).) An uncodified provision of the measure provides that Proposition 47 "shall be liberally construed to effectuate its purposes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18, p. 74; see also id ., § 15, p. 74 [providing that the initiative "shall be broadly construed to accomplish its purposes"].)
3. Prior Interpretation of Proposition 47
Proposition 47 has generated many interpretive issues for this court. (See, e.g., People v. Lara (2019)
A recent decision by this court, Buycks , supra ,
In Buycks , supra , 5 Cal.5th at page 883,
We also determined in Buycks , supra ,
Applying these principles, we concluded in Buycks , supra ,
A somewhat similar analysis applied to Laura Valenzuela in Buycks , supra ,
We concluded that the third defendant, Guiomar, was not entitled to dismissal of his conviction for failing to appear. ( Buycks , supra , 5 Cal.5th at pp. 891-892, 896-897,
B. Defendant Is Entitled To Dismissal of His Street Terrorism Conviction in a Full Resentencing
There is no dispute that, in accordance with section 1170.18, subdivision (a), the resentencing court appropriately reclassified defendant's grand theft *427conviction (§ 487, subd. (c)) as misdemeanor petty theft. Nor is there any question that defendant was entitled to be resentenced consistently with that redesignation. The issue before us is whether, in light of this adjustment, defendant's conviction for street terrorism can still stand. We conclude that it cannot.
As previously described, an essential element of the street terrorism offense is that the defendant must have "promote[d], further[ed], or assist[ed] in any felonious criminal conduct" by gang members. ( § 186.22, subd. (a).) This element "requir[es] the promotion or furtherance of specific conduct of gang members" ( Rodriguez , supra , 55 Cal.4th at p. 1137,
In this case, there is no dispute that the theft of Ramirez's $ 200 bicycle - the same conduct that gave rise to defendant's conviction for grand theft - constituted the felonious criminal conduct involved with his conviction for street terrorism. In light of defendant's Proposition 47 resentencing, that theft can no longer be regarded as felonious. (§§ 490.2, 1170.18, subd. (b).) The People do not explain how defendant's underlying conduct could be regarded as felonious under a different theory, at least in a way not already rejected by the jury (which declined to convict defendant of robbery). The reduction of defendant's felony grand theft conviction to a misdemeanor therefore established the absence of an essential element of the street terrorism crime. (See Buycks , supra , 5 Cal.5th at pp. 889-890,
The People contend that even if defendant's conviction for grand theft became a "misdemeanor for all purposes" upon reclassification and resentencing (§ 1170.18, subd. (k)), this adjustment has no effect on his conviction for street terrorism. The People stress that a conviction for street terrorism requires "felonious criminal conduct" ( § 186.22, subd. (a) ), not necessarily a *428conviction for the underlying felony.
The People further contend that the reduction of defendant's grand theft conviction to misdemeanor petty theft does not alter the fact that he committed felonious criminal conduct as it was denominated in 2013. They take the position that the classification of defendant's conduct at that time controls. But neither the gravamen of the street terrorism crime nor any indicia of legislative intent associated with it convey that the felonious nature of the criminal conduct necessary for commission of this offense is fixed for all time when the crime takes place. It is more reasonable, in light of the limited retroactivity rule of Estrada , supra ,
In this respect, the felonious character of the criminal conduct involved with street terrorism is little different from the erstwhile felonious nature of the prior convictions involved with the enhancements we addressed in Buycks , supra ,
Lastly, the People liken the facts of this case to those associated with defendant Guiomar in Buycks , supra ,
III. DISPOSITION
Given the circumstances before us, defendant cannot properly be resentenced for the street terrorism offense. Instead, this conviction must be dismissed in his Proposition 47 resentencing.
We Concur:
CHIN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
Dissenting Opinion by Justice Corrigan **906I respectfully dissent. In enacting Proposition 47, the electorate expressed its intent to reduce punishment for nonserious theft and drug offenses. Defendant's crime of participating in a criminal street gang under Penal Code
"Enacted in 2014, Proposition 47, known as the Safe Neighborhoods and Schools Act ..., 'reduc[ed] penalties for certain theft and drug offenses by amending existing statutes.' [Citation.] 'One of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' " ( People v. Adelmann (2018)
*430The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.)
The resentencing statute, section 1170.18, subdivision (a), provides: "A person *663who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."
Defendant's offense, street terrorism under section 186.22, subdivision (a), is not listed in section 1170.18, subdivision (a). Nevertheless, he argues he is entitled to resentencing "in accordance with" section 490.2, which defines as misdemeanor petty theft "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($ 950) ...." ( § 490.2, subd. (a).) The majority agrees: "In this case, there is no dispute that the theft of Ramirez's $ 200 bicycle - the same conduct that gave rise to defendant's conviction for grand theft - constituted the felonious criminal conduct involved with his conviction for street terrorism. In light of defendant's Proposition 47 resentencing, that theft can no longer be regarded as felonious. ( §§ 490.2, 1170.18, subd. (b).)" (Maj. opn., ante , 247 Cal.Rptr.3d at pp. 660-661, 441 P.3d at pp. 904-905.)
Although we have reasoned that offenses not listed in section 1170.18 may be resentenced in accordance with section 490.2, we have been careful to note that such offenses are, in fact, theft offenses. For example, People v. Page (2017)
The majority here equates street terrorism with a nonserious theft offense subject to section 490.2. Section 186.22, subdivision (a) applies to "[a]ny person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, *664furthers, or assists in any felonious criminal conduct by members of that gang ...." First, the Penal Code specifically lists a violation of section 186.22 as a serious felony. (§ 1192.7, subd. (c)(28).) Proposition 47 was represented to the voters as applying only to "nonserious and nonviolent property and drug crimes." (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, p. 35.) Applying its ameliorative provisions to a serious felony would seem contrary to the electorate's intent.
Second, a violation of section 186.22, subdivision (a) is not a theft offense. "The gravamen of the substantive offense set forth in section 186.22 [, subdivision] (a) is active participation in a criminal street gang." ( People v. Albillar (2010)
On this point, two Court of Appeal cases are instructive. People v. Martin (2018)
Similarly, People v. Soto (2018)
The reasoning of Martin and Soto applies here. Defendant's street terrorism offense went beyond the mere commission of theft. The jury necessarily found that defendant acted with a fellow gang member and committed their offense to promote their gang. Just as a conspiracy to commit theft poses a danger to society beyond the underlying theft, defendant's active gang participation likewise posed a danger to society beyond the underlying theft. As Soto reasoned, nothing in Proposition 47 suggested an electoral intent to reduce to a misdemeanor any and all felonies that may include some aspect of theft.
In passing the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.), the Legislature declared "that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities, both individually and collectively, present a clear and present danger to public order and safety and are *433not constitutionally protected." (§ 186.21.) The majority's treatment of defendant's street terrorism offense as nothing but a form of theft is at odds with the important purposes behind both section 186.22, "enacted in 1988 to combat a dramatic increase in gang-related crimes and violence" ( People v. Prunty (2015)
The majority's reliance on the so-called " 'full resentencing rule' " of People v. Buycks (2018)
It is unclear from the majority opinion what specific statutory amendment is being given retroactive effect within the meaning of Estrada and Buycks under the *666full resentencing rule. The majority states, "The reduction of defendant's felony grand theft conviction to a misdemeanor therefore established the absence of an essential element of the street terrorism crime" (maj opn., ante , 247 Cal.Rptr.3d at p. 660, 441 P.3d at p. 904), suggesting it is applying section 1170.18, subdivision (k). Indeed, the majority cites Buycks 's application of that provision. (Maj. opn., ante , 247 Cal.Rptr.3d at pp. 660-661, 441 P.3d at pp. 904-905; see also ibid . ["In light of defendant's Proposition 47 resentencing, that theft can no longer be regarded as felonious"].) However, the enhancements in Buycks required underlying felony convictions in order to be imposed, and the Proposition 47 reduction of those felonies to misdemeanors took away a necessary component of the enhancements. ( Buycks,
The majority's application of the full resentencing rule here essentially sanctions an end run around the Proposition 47 resentencing scheme. As described ante , defendant cannot establish entitlement to relief under the resentencing procedure of section 1170.18, subdivision (a). Buycks recognized alternative procedures for relief "because Proposition 47 does not provide a specific mechanism for recalling and resentencing a judgment solely because a felony-based enhancement has been collaterally affected by the reduction of a conviction to a misdemeanor in a separate judgment ...." ( Buycks,
We are, of course, bound by the voters' lawful enactments, and properly so. But we are bound to enforce those enactments in accordance with the voters' lawful intent. As Justice Yegan observed in Martin , "The fabric of the law will stretch only so far before it will unravel." ( Martin, supra, 26 Cal.App.5th at p. 828,
Dissenting Opinion by Justice Kruger *667*435In 2013, in an apparent gang-related incident, defendant Luis Donicio Valenzuela took a bicycle worth around $ 200 dollars from another young man. He was convicted of two felonies: grand theft from the person ( Pen. Code, § 487, subd. (c) ) and active participation in a street gang (id. , § 186.22, subd. (a)). The latter offense applies to a person who actively participates in a criminal street gang with knowledge of the gang's pattern of criminal activity, and who "willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." (Ibid. )
In 2014, while these convictions were on appeal, voters passed Proposition 47, which reclassified many drug possession and theft offense felonies as misdemeanors. Among the measure's new provisions was Penal Code section 490.2, which generally reduced felony punishment for theft of property worth $ 950 or less to the misdemeanor level. (Id. , subd. (a).) Invoking this provision, defendant successfully petitioned the superior court to reduce his grand theft conviction to a misdemeanor. ( Pen. Code, § 1170.18, subds. (a), (b), as added by Prop. 47, § 14, approved by voters, Gen. Elec. (Nov. 4, 2014).) He now argues that the superior court should also have dismissed his felony gang participation conviction altogether. He reasons that once the grand theft conviction was reduced to a misdemeanor, grand theft could no longer be used to satisfy the "felonious criminal conduct" element of the gang participation crime **910under Penal Code section 186.22, subdivision (a).
The Court of Appeal rejected this argument. It explained that because liability under Penal Code section 186.22, subdivision (a) does not depend on having sustained any underlying felony conviction, the fact that defendant's grand theft conviction was later reduced to a misdemeanor had no bearing on the continued validity of defendant's gang participation conviction. ( People v. Valenzuela (2016)
The majority now reverses, reasoning that the resentencing court's reduction of defendant's theft conviction to a misdemeanor "established the absence of an essential element of the street terrorism offense-felonious criminal conduct." (Maj. opn., ante , 247 Cal.Rptr.3d at pp. 653-654, 441 P.3d at p. 898.) "In light of defendant's Proposition 47 resentencing," defendant's theft of the bicycle "can no longer be regarded as felonious" (maj. opn., ante , 247 Cal.Rptr.3d at p. 660, 441 P.3d at p. 904); put another way, "the reduction of defendant's theft conviction to a misdemeanor establishes that he cannot be regarded as having engaged in felonious criminal conduct" (id. at p. 661, 441 P.3d at p. 904) as required for a conviction under Penal Code section 186.22, subdivision (a).
Much as I sympathize with the majority's efforts to give appropriate effect to Proposition 47's ameliorative purposes, I cannot join in this reasoning. As *436the Court of Appeal rightly noted, the argument conflates the grand theft conviction with the conduct underlying it. Defendant's gang participation conviction did not depend on the existence of a separate conviction for grand theft (or any other felony, for that matter); it depended only on his having committed or assisted in felonious conduct to promote the activities of a criminal street gang. It follows that the reduction of defendant's grand theft conviction does not entitle defendant to dismissal of his gang participation conviction.
This case is not like *668People v. Buycks (2018)
The majority opinion does gesture to a possible alternative rationale for reaching the same conclusion: that setting aside the fate of defendant's separate theft conviction, Proposition 47 itself retroactively operated on Penal Code section 186.22, subdivision (a), to preclude reliance on conduct involving theft of property worth less than $ 950. Although the majority opinion does not clearly say so, this is an entirely different argument for granting relief. It does not depend in any way on the reclassification of defendant's grand theft conviction; it depends, rather, on our usual presumption that legislation lessening punishment is intended to apply retroactively to all cases that have not yet become final on appeal. ( In re Estrada (1965)
**911(Maj. opn., ante , 247 Cal.Rptr.3d at p. 661, 441 P.3d at p. 905.)
*437There are, however, several difficulties with relying on this argument here, beginning with the fact it has not been properly presented to us. Defendant never made the Estrada argument in the Court of Appeal, and that court did not address it. Nor did defendant rely on Estrada in his briefing in this court. Even when we specifically asked the parties to brief that decision's significance, defendant affirmatively disclaimed reliance on this theory, conceding that he was not entitled to retroactive relief under Estrada . Counsel partly withdrew that concession in a letter submitted to the court before oral argument, but he still did not invoke Estrada as a standalone basis for relief; his arguments have instead relied on some amalgam of Estrada and his original, and incorrect, theory that the reduction of his grand theft conviction necessarily implies the invalidity of his gang participation conviction.
*669As a consequence, neither the parties nor the courts have ever grappled with the implications of adopting a rule that would regard Proposition 47 as retroactively invalidating convictions for offenses that, like Penal Code section 186.22, subdivision (a), depend in some way on a showing that the defendant committed conduct punishable as a felony. The first, threshold question is whether this theory can be squared with People v. DeHoyos (2018)
Even if we were to answer that question in the affirmative, we would then have to confront an arguably anomalous consequence of the theory. Proposition 47 was designed to reduce certain felonies to misdemeanors. But retroactive application of Proposition 47 in this context could instead result in a defendant being relieved of all criminal liability for his or her formerly felonious conduct. In this case, of course, defendant was convicted of grand theft as well as gang participation, and that theft conviction has now been reduced to a misdemeanor. Dismissing or vacating defendant's gang participation conviction, as this court's disposition directs, will leave him with a misdemeanor conviction for his theft, just as a person who committed the same conduct after Proposition 47 would face prosecution for misdemeanor theft. But a defendant who, by contrast, had been charged with and convicted *438only of gang participation under Penal Code section 186.22, subdivision (a), would, under the Estrada theory, be retroactively relieved of all liability. This is a result that the voters who approved Proposition 47 did not likely anticipate.
Whether that consequence is one that should preclude retroactive relief is a significant question. But it is a question that is not properly before us, and it is therefore not one we can or should answer here.
On the only question properly presented to us, I think the Court of Appeal got it right: The reduction of defendant's grand theft conviction to a misdemeanor did not retroactively invalidate defendant's separate conviction for gang participation. In the absence of briefing and argument to support any other viable theory of relief, I would affirm the judgment of the Court of Appeal.
I Concur:
CORRIGAN, J.
A broad analogy might be drawn to a defendant who escapes while incarcerated for a crime later found to be unconstitutional. We made clear in Estrada , supra ,
Thus, for example, a gang member who promotes, furthers, or assists a felony committed by other gang members might be convicted of street terrorism without also being charged with, let alone convicted of, the offense he or she facilitated. In such a case, however, the finder of fact still must determine that the defendant promoted, furthered, or assisted the commission of a specific felony.
Our determination that defendant is entitled to a full resentencing at which the reduction of his grand theft conviction to misdemeanor petty theft will lead to the dismissal of his street terrorism conviction should not be read to imply a separate, negative holding: that a different defendant, convicted only of street terrorism before Proposition 47 came into effect, cannot obtain relief under the initiative even though the criminal conduct he or she promoted, furthered, or assisted is no longer felonious. We have no occasion here to address those circumstances, and leave for another day what remedies, if any, are available to a defendant in that position.
Subsequent statutory references are to the Penal Code unless otherwise noted.
Martin was convicted of shoplifting (§ 459.5 ) for an incident unrelated to the charged conspiracy. (See Martin, supra, 26 Cal.App.5th at p. 829,
Defendant did brief and argue an alternative theory for relief independent of Penal Code section 1170.18, subdivision (k) : that defendant was entitled to resentencing under subdivision (a) of the statute. But that theory relied not on Estrada but on People v. Page (2017)