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The Legislature originally enacted section 186.22 in 1988 as part of the California Street Terrorism Enforcement and Prevention Act, also known as the "STEP Act."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
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)
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).)
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 ,
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
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 ,
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
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
"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)
The resentencing statute, section 1170.18, subdivision (a), provides: "A person
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,
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
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
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,
Dissenting Opinion by Justice Kruger
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
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,
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
This case is not like
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)
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
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.
Notes
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,
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)