The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LARRY LEE FLETCHER et al.,
Defendants and Appellants.
S281282
Fourth Appellate District, Division Two
E077553
Riverside County Superior Court
BAF2001566
August 25, 2025
Justice Liu authored the opinion of the Court, in which
Justices Kruger, Groban, and Evans concurred.
Chief Justice Guerrero filed a dissenting opinion, in which
Justices Corrigan, and Jenkins concurred.
PEOPLE v. FLETCHER
S281282
Opinion of the Court by Liu, J.
The “Three Strikes” law is a sentencing scheme that
requires a court to double or sometimes triple the punishment
for a felony offense if the defendant was previously convicted of
a crime that qualifies as a “serious” or “violent” felony. (Pen.
Code, §§ 667, subd. (e), 1170.12, subd. (c); all undesignated
statutory references are to this code.) The “serious” or “violent”
felonies that trigger this sentencing scheme, commonly referred
to as “strikes” or “strike priors,” are enumerated by statute.
(§§ 1192.7, subd. (c), 667.5, subd. (c).) If a defendant’s current
offense is a serious felony, the defendant is also subject to a five-
year prior serious felony enhancement — a so-called “nickel
prior” — in addition to any strike. (§ 667, subd. (a)(1).) The list
of “serious” felonies includes “any felony offense, which would
also constitute a felony violation of Section 186.22.” (§ 1192.7,
subd. (c)(28).) Section 186.22 defines substantive gang offenses
and gang enhancements.
In 2021, the Legislature amended section 186.22 with the
passage of Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill 333), enacting the STEP Forward Act of 2021.
(Stats. 2021, ch. 699, § 1.) Among other things, Assembly
Bill 333 changed the elements of gang offenses and
enhancements by narrowing the definitions of “criminal street
gang,” “pattern of criminal activity,” and “what it means for an
offense to have commonly benefitted a street gang.” (People v.
Tran (2022) 13 Cal.5th 1169, 1206 (Tran); see § 186.22,
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Opinion of the Court by Liu, J.
subds. (f), (g), as amended by Stats. 2021, ch. 699, § 4.) We held
in Tran that Assembly Bill 333 is ameliorative legislation that
applies to nonfinal judgments under the rule of In re Estrada
(1965) 63 Cal.2d 740 (Estrada). (Tran, at pp. 1206–1207.)
We granted review in this case to decide whether
Assembly Bill 333 applies to a sentencing court’s determination
of whether a defendant’s conviction under the prior version of
section 186.22 qualifies as a prior serious felony conviction for
purposes of prior serious felony enhancements and the Three
Strikes law and, if so, whether its application constitutes an
improper legislative amendment of a ballot initiative. The issue
has divided the Courts of Appeal. (Compare People v. Farias
(2023) 92 Cal.App.5th 619, 652, review granted Sept. 27,
S281027 [Assembly Bill 333 does apply] with People v. Scott
(2023) 91 Cal.App.5th 1176, 1181–1182, review granted Sept.
27, 2023, S280776 (Scott) [Assembly Bill 333 does not apply];
People v. Aguirre (2023) 96 Cal.App.5th 488, 495, review
granted Jan. 10, 2024, S282840 (Aguirre) [same]; People v.
Gonzalez (2024) 98 Cal.App.5th 1300, 1311, review granted
Apr. 10, 2024, S284060 [same].) 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 under subdivision (c)(28) of section 1192.7 for
purposes of the Three Strikes law and prior serious felony
enhancements. And it applies to the case before us because
Fletcher’s and Taylor’s judgments are not yet final. Further,
such application of Assembly Bill 333 does not
unconstitutionally amend any ballot initiative.
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PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
I.
In December 2020, defendants Larry Lee Fletcher and
Eric Anthony Taylor, Jr., approached a customer (John Doe) in
a liquor store in Hemet, California. Fletcher and Taylor were
members of the Four Corner Hustler Crips criminal street gang.
Fletcher asked Doe where he was from. Doe left the liquor store
and got in his car; Fletcher and Taylor followed. Witnesses
heard gunshots near the car before it started driving away.
Fletcher and Taylor were seen firing multiple shots at Doe’s
retreating car.
In a joint trial, a jury convicted Fletcher and Taylor of
willful, deliberate, and premeditated attempted murder
(count 1) (§§ 664, subd. (a), 187, subd. (a)) and found true the
allegations that they had committed the attempted murder for
the benefit of a criminal street gang (§ 186.22, subd. (b)(5)) and
had each personally and intentionally discharged a firearm
(§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)). In addition,
Fletcher and Taylor were each convicted of active participation
in a criminal street gang (count 2) (§ 186.22, subd. (a)); unlawful
possession of a firearm (counts 3 [Taylor] and 4 [Fletcher])
(§ 29800, subd. (a)(1)) with a true finding as to Taylor that he
was personally and intentionally armed with a deadly weapon
(§ 667, subd. (e)(2)(C)(iii)); assault with a semiautomatic
firearm (count 5) (§ 245, subd. (b)) with true findings on the
personal use of a firearm (§§ 12022.5, subd. (a), 1192.7,
subd. (c)(8)) and commission of the assault for the benefit of a
criminal street gang (§ 186.22, subd. (b)); and willful discharge
of a firearm at an occupied motor vehicle (count 6) (§ 246) with
a true finding that the willful discharge was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(4)(B)).
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Opinion of the Court by Liu, J.
The trial court then conducted a bench trial on alleged
strike priors. Fletcher was alleged to have one prior serious
felony conviction, and Taylor was alleged to have two. After
considering the evidence on the alleged prior convictions, the
trial court found “beyond a reasonable doubt” that Fletcher and
Taylor were each previously convicted in 2015 of one count of
unlawful possession of a firearm (§ 29800, subd. (a)(1)) with the
additional finding that the possession was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)).
Although the possession charge by itself did not qualify as a
serious felony or a strike prior, the trial court concluded that the
gang enhancement attached to the conviction made it a
qualifying offense for the prior serious felony enhancement and
the Three Strikes law. (§§ 1192.7, subd. (c)(28), 667, subds. (c),
(d)(1), 1170.12, subds. (a), (b)(1).) The court additionally found
that Taylor was previously convicted in 2011 of attempted first
degree burglary (§§ 664, 459), which qualified as a serious felony
(§ 1192.7, subd. (c)(18)) and a second strike.
The trial court sentenced Fletcher and Taylor under the
Three Strikes law. Fletcher was sentenced to the upper term of
15 years to life for attempted murder (count 1), which was
doubled under the Three Strikes law for a total indeterminate
term of 30 years to life. For active participation in a criminal
street gang (count 2), the court sentenced Fletcher to the upper
term of three years, which was doubled for a total of six years.
This sentence was stayed pursuant to section 654. For unlawful
possession of a firearm (count 4), the court imposed the upper
determinate term of six years, to be served at “one third the
middle term” for a determinate sentence of one year and four
months. The court also imposed a 20-year enhancement on the
attempted murder charge (count 1) for the personal and
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Opinion of the Court by Liu, J.
intentional discharge of a firearm (§ 12022.53, subd. (c)) and a
five-year enhancement for Fletcher’s prior serious felony
conviction (§ 667, subd. (a)). This resulted in a total
determinate term of 26 years and four months. In all, Fletcher
was sentenced to 56 years and four months to life.
Taylor was also sentenced to the upper term of 15 years to
life for attempted murder (count 1), but because he had two
strikes, his sentence was tripled under the Three Strikes law for
an indeterminate term of 45 years to life. His two strikes also
resulted in a sentence of 25 years to life for unlawful possession
of a firearm (count 3), to be served consecutively for a total
indeterminate term of 70 years to life. For active participation
in a criminal street gang (count 2), the court sentenced Taylor
to 25 years to life but stayed this sentence pursuant to
section 654. In addition to his indeterminate term, the court
imposed a 20-year enhancement on the attempted murder
charge (count 1) for the personal and intentional discharge of a
firearm (§ 12022.53, subd. (c)) and two five-year enhancements
for Taylor’s two prior serious felony convictions (§ 667,
subd. (a)). This resulted in a total determinate term of 30 years.
In all, the court sentenced Taylor to 100 years to life.
Fletcher’s and Taylor’s cases were jointly on appeal when
Assembly Bill 333 went into effect on January 1, 2022.
(Stats. 2021, ch. 699.) The Attorney General conceded that
Assembly Bill 333 applied retroactively under Estrada and
required reversal of Fletcher’s and Taylor’s nonfinal convictions
for participation in a criminal street gang (count 2) as well as
the gang enhancements on counts 1, 5, and 6. The Court of
Appeal accordingly reversed the active gang participation count
and the gang enhancements and remanded “to give the
prosecution an opportunity to retry them under the new
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PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
standards.” (People v. Fletcher (2023) 92 Cal.App.5th 1374,
1382 (Fletcher).) Neither party disputes this aspect of the Court
of Appeal’s holding.
Fletcher and Taylor also argued that Assembly Bill 333
required reversal of the trial court’s true findings that their 2015
convictions for unlawful firearm possession constituted a
serious felony and a strike prior. As they explained, the gang
enhancement attached to this conviction is what makes the
firearm possession offense a “serious felony.” And in their view,
because Assembly Bill 333 changed the elements of a gang
enhancement, the trial court’s finding that Fletcher and Taylor
suffered the 2015 convictions is insufficient to establish that
those convictions presently qualify as serious felonies or strike
priors. Before the Court of Appeal, the Attorney General
initially agreed with defendants but then reversed course in a
supplemental letter brief.
The Court of Appeal held that applying Assembly Bill 333
“to serious felony and strike priors premised on violations of
section 186.22 . . . would constitute an improper legislative
amendment of a ballot initiative.” (Fletcher, supra,
92 Cal.App.5th at p. 1379.) According to the court, interpreting
Assembly Bill 333 to require that defendants’ 2015 gang
enhancements satisfy the current version of section 186.22
conflicted with the so-called “lock-in provisions” of
Proposition 21 and Proposition 36. (Fletcher, at p. 1381.) These
provisions set the list of serious felonies for purposes of the
Three Strikes law as of a specific date. (Prop. 21, as approved
by voters, Primary Elec. (Mar. 7, 2000) §§ 14, 16
(Proposition 21); Prop. 36, as approved by voters, Primary Elec.
(Nov. 6, 2012) §§ 3, 5 (Proposition 36).) The Court of Appeal
reasoned that because Assembly Bill 333 was passed without a
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PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
supermajority of the Legislature and became effective without
voter approval, its application to the findings on defendants’
2015 gang enhancements would “run[] afoul of constitutional
requirements regarding legislative amendment of ballot
initiatives.” (Fletcher, at p. 1381.)
We granted review.
II.
The Legislature enacted Assembly Bill 333 “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.’ [Citation.] . . . [T]he
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.’ ” (People v. Rojas
(2023) 15 Cal.5th 561, 576 (Rojas); 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’ ”].) As noted, Assembly Bill 333
made significant changes to the elements of gang offenses and
enhancements as defined in section 186.22. (Tran, supra,
13 Cal.5th at p. 1206.) We have held that under Estrada those
changes to section 186.22 are retroactive to all cases, such as
Fletcher’s and Taylor’s, that were pending on appeal when
Assembly Bill 333 went into effect. (Tran, at pp. 1206–1207.)
Defendants do not contest the finality of their 2015
convictions for unlawful firearm possession with a gang
enhancement, nor do they argue that Assembly Bill 333 calls
into question the validity of those convictions. Rather, they
contend that the determination of whether those 2015
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Opinion of the Court by Liu, J.
convictions qualify as prior serious felony convictions under the
Three Strikes law and under the nickel prior statute (§ 667,
subd. (a) (section 667(a)) is a determination made in the present
proceeding under current law. Accordingly, they argue, the
prosecution must prove that their 2015 convictions qualify as
prior serious felony convictions under the current version of
section 186.22, not under the pre-Assembly Bill 333 version in
effect at the time of their 2015 convictions. As Fletcher puts it,
“if the People intend to use appellant’s 2015 gang-related felony
conviction to increase the sentence in his current case, the
People can ‘not simply rely on the fact defendant had suffered a
conviction for violating section 186.22[].’ Rather, the People
must prove that appellant’s prior conviction constituted a gang
felony under AB 333.”
We begin by examining the Three Strikes law, which was
enacted “to ensure longer prison sentences and greater
punishment” for repeat offenders. (Former § 667, subd. (b), as
amended by Stats. 1994, ch. 12, § 1, pp. 71, 72.) While
commonly referred to as a single law, the Three Strikes law
actually “ ‘consists of two, nearly identical statutory schemes.’ ”
(People v. Conley (2016) 63 Cal.4th 646, 652.) In 1994, the
Legislature enacted the statutory version of the law
(Stats. 1994, ch. 12, § 1, p. 71, codified at § 667, subds. (b)–(i));
later that year, the voters enacted a nearly identical measure by
initiative (Prop. 184, as approved by voters, Gen. Elec. (Nov. 8,
1994), eff. Nov. 9, 1994 (Proposition 184), codified at § 1170.12).
“These two parallel enactments have reposed, somewhat
cumbersomely, in the code since that time.” (People v.
Henderson (2022) 14 Cal.5th 34, 43 (Henderson).)
In addressing the issue before us, the parties and various
Courts of Appeal have focused on two features of the Three
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Opinion of the Court by Liu, J.
Strikes law: the lock-in provision and the determination clause.
They have suggested that these provisions resolve which law —
current law, the law at the time of the prior conviction, or some
other variation — governs whether a prior conviction qualifies
as a strike prior or a nickel prior. (See, e.g., Fletcher, supra,
92 Cal.App.5th at p. 1381 [relying on the lock-in provision];
People v. Gonzalez, supra, 98 Cal.App.5th at p. 1311 [relying on
the determination clause].) As explained below, while these
provisions illuminate some aspects of the prior serious or violent
felony determination, we are not persuaded that either one
answers the question before us. Nor do we attempt, as the
Courts of Appeal have done, to comprehensively resolve what
version of the substantive law of a felony offense governs the
strike prior or nickel prior determination for every serious or
violent felony. (See §§ 1192.7, subd. (c)(1)–(43), 667.5,
subd. (c)(1)–(24).) We narrowly conclude that with regard to
prior convictions like Fletcher’s and Taylor’s that are premised
on violations of section 186.22, current law applies in
determining whether they qualify as prior serious felony
convictions under section 1192.7, subdivision (c)(28).
A.
The lock-in provision and the determination clause were
enacted as part of the original statutory and initiative versions
of the Three Strikes law and have been amended over the years.
The meaning of those provisions is a question of law, which we
review de novo. (Apple, Inc. v. Superior Court (2013) 56 Cal.4th
128, 135.) “ ‘ “In interpreting a voter initiative . . . , we apply the
same principles that govern statutory construction.” ’ ”
(Henderson, supra, 14 Cal.5th at p. 50.) Our task is to
determine the intent of the electorate or the Legislature, and in
determining that intent, “ ‘ “we turn first to the language of the
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Opinion of the Court by Liu, J.
statute, giving the words their ordinary meaning.” . . . But the
statutory language must also be construed in the context of the
statute as a whole and the overall statutory scheme. . . . We
apply a presumption, as we similarly do with regard to the
Legislature, that the voters, in adopting an initiative, did so
being “aware of existing laws at the time the initiative was
enacted.” ’ ” (Ibid.)
We begin with the lock-in provision, which is not
materially different in the legislative and initiative versions of
the statute. (§§ 667.1, 1170.125.) To elucidate its meaning, we
first observe that the Three Strikes law defines a prior “serious”
felony conviction by reference to a list of offenses contained in
section 1192.7, subdivision (c) (section 1192.7(c)). (See §§ 667,
subd. (d) [“Notwithstanding any other law and for the purposes
of subdivisions (b) to (i), inclusive, a prior conviction of a serious
. . . felony shall be defined as: [¶] (1) . . . an offense defined in
subdivision (c) of Section 1192.7 as a serious felony in this
state.”], 1170.12, subd. (b)(1) (section 1170.12(b)(1)) [same
reference to section 1192.7(c)].) As originally enacted, the Three
Strikes law provided that “[a]ll references to existing statutes in
subdivisions (c) to (g), inclusive, are to statutes as they existed
on June 30, 1993” (Stats. 1994, ch. 12, § 1, p. 71; see Prop. 184,
§ 2, eff. Nov. 9, 1994 [same]), and various amendments have
maintained this language while updating the specified date.
This provision, by its terms, serves to lock in the list of serious
felonies in section 1192.7(c) as it existed on the specified date.
The lock-in provision’s amendment history illuminates its
function when viewed alongside the expansion of the list of
serious felonies in section 1192.7(c). After June 30, 1993, “the
Legislature classified additional crimes as serious” by amending
the list in section 1192.7(c) “but did not amend the [lock-in]
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Opinion of the Court by Liu, J.
provision to add convictions for these crimes for use as strike
priors under the Three Strikes law.” (People v. Johnson (2015)
61 Cal.4th 674, 683 (Johnson).) In other words, the effective
date of the list of serious felonies remained the same (June 30,
1993) even as the list was expanded. This meant that certain
prior convictions “did not qualify as strike prior convictions
despite the fact that the current offense was committed after
these particular prior offenses had been classified as serious or
violent.” (Id. at p. 684.)
In 2000, Proposition 21 “addressed this issue” by updating
the original June 30, 1993 lock-in date to Proposition 21’s
effective date of March 8, 2000 so that the serious felonies added
to section 1192.7(c) up to and on that date would count as strike
priors. (Johnson, supra, 61 Cal.4th at p. 684; see Prop. 21,
§§ 14, 16; Rojas, supra, 15 Cal.5th at p. 573; Manduley v.
Superior Court (2002) 27 Cal.4th 537, 577, fn. 11.) This
harmonized the list of strike priors with the then-current list of
serious felonies under section 1192.7(c), including
Proposition 21’s expansion of that list to include “any felony
offense, which would also constitute a felony violation of
section 186.22.” (§ 1192.7(c)(28), added by Prop. 21, § 17.) But
this harmony was short-lived; in 2002, the Legislature added a
new serious felony (the use of a weapon of mass destruction) to
section 1192.7(c) without amending the lock-in provision.
(Stats. 2002, ch. 606, § 3, eff. Sept. 17, 2002.) Four years later,
the Legislature again updated the lock-in date to September 20,
2006, thereby including the new serious felony as a qualifying
offense for a strike prior. (Stats. 2006, ch. 337, § 37, eff.
Sept. 20, 2006.)
In a similar fashion, Proposition 36 updated the lock-in
date to November 7, 2012 for offenses committed on or after that
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Opinion of the Court by Liu, J.
date. (Prop. 36, §§ 3, 5.) More recently, the Legislature
simultaneously added a new serious felony (human trafficking
of a minor) to the list in section 1192.7(c) and changed the lock-
in date to the effective date of the new law. (Stats. 2023, ch. 230,
§ 1, eff. Jan. 1, 2024.) This meant that the new offense could be
alleged as a strike as of the law’s effective date, without the lag
created by previous amendments that had expanded the list of
serious felonies without changing the lock-in date.
The Court of Appeal in this case construed the lock-in
provision to lock in not only the list of serious felonies in
section 1192.7(c) as of the specified date (as relevant here,
November 7, 2012), but also the underlying definitions or
elements of the felonies listed in section 1192.7(c), including
section 186.22 as referenced in section 1192.7(c)(28). (Fletcher,
supra, 92 Cal.App.5th at pp. 1380–1381; see id. at p. 1381
[concluding from the lock-in provision that “the definition of a
serious felony for purposes of the Three Strikes law is what
constituted a serious felony in 2012”]; accord, People v. Gonzalez,
supra, 98 Cal.App.5th at p. 1311; Aguirre, supra,
96 Cal.App.5th at p. 497.) But, as the Attorney General
explains, the lock-in provisions of the legislative and initiative
versions of the Three Strikes law “were not designed to alter the
basic principles governing how courts make the serious felony
determination. Rather, the lock-in provisions are simply a
method by which the electorate and the Legislature sought to
ensure measured implementation of which offenses may be used
as strike priors.” For pre-Proposition 21 additions to the list of
serious felonies, the June 30, 1993 lock-in date delayed the use
of those prior convictions as strikes despite their new status as
serious felonies. By contrast, Senate Bill No. 14’s (2023–2024
Reg. Sess.) recent simultaneous addition to the serious felony
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Opinion of the Court by Liu, J.
list and amendment to the lock-in date meant that new
additions to the list were immediately available as strikes. And
the electorate’s updates to the lock-in date with the passage of
Proposition 21 and Proposition 36 ensured that any prior
additions to section 1192.7(c)’s list of serious felonies would
count as strikes for any offenses committed on or after the
effective dates of those initiatives.
The lock-in provision thus regulates the timing by which
offenses added to the serious felony list become available to be
alleged as strikes. The Legislature and electorate have
consistently understood the provision this way, and no party
here contends that the lock-in provision additionally regulates
the relevant date for determining the elements of offenses on the
serious felony list. In sum, we 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.
B.
We turn now to the determination clause. As originally
enacted, the clause in both versions of the Three Strikes law
provided: “The determination of whether a prior conviction is a
prior felony conviction for purposes of subdivisions (b) to (i),
inclusive, 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.” (Stats. 1994, ch. 12, § 1, codified at § 667,
subd. (d)(1) (section 667(d)(1)); see Prop. 184, § 1.) In 2012,
Proposition 36 amended the initiative version of the clause to
read: “The determination of whether a prior conviction is a prior
serious or violent felony conviction for purposes of this section
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Opinion of the Court by Liu, J.
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.” (Prop. 36, § 4, codified at § 1170.12,
subd. (b)(1) (section 1170.12(b)(1)), italics added.)
The Courts of Appeal in People v. Gonzalez and Scott held
that the “plain language” of the determination clause, both the
legislative and initiative versions, “compels the conclusion that
the status of defendant’s prior conviction as a strike was fixed
upon the date of his prior conviction.” (People v. Gonzalez,
supra, 98 Cal.App.5th at p. 1311.) “In other words, ‘the
Legislature intended that the qualifying status of a conviction
would be fixed upon the date of the prior conviction . . . .’ (People
v. Anderson (1995) 35 Cal.App.4th 587, 600, italics added.) This
‘mean[s] that the court is presently required to look backward to
see if, at the time of the conviction of the past offense, such past
offense qualified as a serious or violent offense . . . .’ (People v.
Green (1995) 36 Cal.App.4th 280, 283.) It therefore does not
matter if the definition of a strike has subsequently changed.”
(Scott, supra, 91 Cal.App.5th at pp. 1181–1182.)
Although the quoted language from Anderson and Green
appears to support the position taken in Scott and People v.
Gonzalez, the issue is not so simple. We begin by tracing the
interpretation of the determination clause as originally enacted;
the text remains unchanged in the legislative version of the
statute. (§ 667(d)(1).) We then examine the initiative version of
the determination clause as amended in 2012 by Proposition 36.
(§ 1170.12(b)(1).)
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1.
As an initial matter, the meaning of the determination
clause is not clear as a matter of plain language. Anderson and
Green were among several cases in the 1990s addressing
whether felony convictions that preceded the Three Strikes
law’s effective date could qualify as strikes under the original
terms of the determination clause (§ 667(d)(1)). (See People v.
Anderson, supra, 35 Cal.App.4th at pp. 600–601 (Anderson);
People v. Green, supra, 36 Cal.App.4th at pp. 282–284 (Green);
People v. Sipe (1995) 36 Cal.App.4th 468, 476–478 (Sipe); People
v. Reed (1995) 33 Cal.App.4th 1608, 1610–1612 (Reed); Gonzales
v. Superior Court (1995) 37 Cal.App.4th 1302, 1306–1310
(Gonzales).) The defendants in those cases argued that the
phrase “[t]he determination of whether a prior conviction is a
prior felony conviction . . . shall be made upon the date of that
prior conviction” (§ 667(d)(1), italics added) means that the
determination “must be made at the time of the prior
conviction — which cannot have occurred with convictions
predating the Three Strikes law.” (Reed, at p. 1610; see ibid.
[noting “ambiguity . . . in the law’s use of the word ‘upon’ ”];
Gonzales, at p. 1310 [noting “the admittedly awkward language
of the ‘determination clause’ ”].) The Courts of Appeal uniformly
rejected that contention in light of the Three Strikes law’s
purpose of punishing recidivism and the fact that “[t]here is no
reason . . . to require a court to determine whether a conviction
may serve as a ‘strike’ unless and until the defendant commits
another felony.” (Sipe, at p. 478.) They construed
section 667(d)(1) to require the “determination” at issue “to be
made [not] at the time of the prior conviction, but simply by
reference to the date of the prior conviction.” (Reed, at p. 1612;
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see Anderson, at p. 601; Gonzales, at pp. 1308, 1310; Green, at
p. 283; Sipe, at p. 478.)
In stating this holding, however, the courts differed in the
language they used to describe the “determination” at issue.
Reed interpreted the statute to mean that “whether a prior
conviction is a ‘strike’ ” is to be determined by reference to the
date of the prior conviction. (Reed, supra, 33 Cal.App.4th at
p. 1612.) Green said the relevant determination is whether the
“past offense qualified as a serious or violent offense” at the time
of that conviction. (Green, supra, 36 Cal.App.4th at p. 283.) And
Anderson said “the qualifying status of a conviction” —
presumably meaning the conviction’s status as a strike —
“would be determined in reference to th[e] date” of conviction.
(Anderson, supra, 35 Cal.App.4th at pp. 600, 601.)
By contrast, other cases took a narrower view.
Emphasizing the statutory language that follows the
determination clause, they concluded that the relevant
“determination” in section 667(d)(1) is not whether a prior
conviction is a strike but more specifically whether a prior
conviction is for a felony as opposed to a misdemeanor. (See
Sipe, supra, 36 Cal.App.4th at pp. 476–478; Gonzales, supra,
37 Cal.App.4th at p. 1308.) In full, section 667(d)(1) provides
that a prior serious or violent felony conviction shall be defined
as: “An offense defined in subdivision (c) of Section 667.5 as a
violent felony or an offense defined in subdivision (c) of
Section 1192.7 as a serious felony in this state. The
determination of whether a prior conviction is a prior felony
conviction for purposes of subdivisions (b) to (i), inclusive, 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
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Opinion of the Court by Liu, J.
misdemeanor. The following dispositions shall not affect the
determination that a prior conviction is a prior felony for
purposes of subdivisions (b) to (i), inclusive: [¶] (A) The
suspension of imposition of judgment or sentence. [¶] (B) The
stay of execution of sentence. [¶] (C) The commitment to the
State Department of State Hospitals as a mentally disordered
sex offender following a conviction of a felony. [¶] (D) The
commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.”
The Court of Appeal in Sipe observed that the
determination clause is part of a longer sentence in
section 667(d)(1) and explained that “[t]he balance of the
sentence provides the sentence imposed shall not affect the
determination, unless ‘the sentence automatically, upon initial
sentencing, converts the felony to a misdemeanor.’ (§ 667,
subd. (d)(1).) The statute then sets forth various dispositions
that will not affect the felony/misdemeanor determination.
Read in context, the ‘determination’ at issue must be whether
the prior conviction ‘is a prior felony conviction’ rather than a
conviction for a misdemeanor. This determination is made
‘upon the date’ of the conviction, so subsequent events, such as
a reduction to a misdemeanor (§ 17, subd. (b)(3)), will not affect
its classification as a felony conviction.” (Sipe, supra,
36 Cal.App.4th at p. 478.) The Gonzales court likewise
concluded, upon examining “the remaining language of
section 667, subdivision (d)(1),” that the determination clause
“ensures that post-conviction events will not transform the
felony into a misdemeanor (with the sole exception expressed).”
(Gonzales, supra, 37 Cal.App.4th at p. 1308.)
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The courts in Sipe and Gonzales correctly construed the
determination clause, consistent with the principle that “[w]e do
not examine [statutory] language in isolation, but in the context
of the statutory framework as a whole in order to determine its
scope and purpose and to harmonize the various parts of the
enactment.” (City of San Jose v. Superior Court (2017) 2 Cal.5th
608, 616.) It is evident from the full text of section 667(d)(1) that
the determination clause is intended to preserve the felony
character of a prior conviction if it was a felony at the time of
conviction, notwithstanding any subsequent reduction to a
misdemeanor, suspension of judgment or sentence, or other
disposition. The only exception is when “the sentence
automatically, upon the initial sentencing, converts the felony
to a misdemeanor.” (§ 667(d)(1); cf. People v. Park (2013)
56 Cal.4th 782, 794 (Park) [“By this language [i.e.,
section 667(d)(1)], lawmakers made clear their intent to bring
within the reach of the Three Strikes law a defendant whose
wobbler was reduced to a misdemeanor after the time of initial
sentencing.”].) As further explained below, the language in
Anderson, Green, and Reed suggesting that the relevant
“determination” is whether a prior conviction qualifies as a
strike — i.e., not only whether the conviction is for a felony, but
also whether it is for a serious or violent felony — was overly
broad.
Section 667(d)(1), by its terms, does not address the
determination of whether a prior felony conviction qualifies as
serious or violent. That determination was the subject of a
separate claim brought by early Three Strikes defendants —
i.e., that a prior felony conviction could not qualify as a strike if
it was not included on the list of serious felonies (§ 1192.7(c)) or
violent felonies (§ 667.5, subd. (c)) at the time of conviction.
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Gonzales, supra, 37 Cal.App.4th 1302 is instructive. The
defendant in that case had suffered prior convictions in 1980
and 1981 for robbery and residential burglary, respectively, both
serious felonies on the original lock-in date of June 30, 1993. (Id.
at p. 1304.) Those convictions, he argued, could not qualify as
strikes for two reasons: first, no determination of their status
as prior felony convictions was made at the time of conviction,
and second, “prior felony convictions, as defined by section 667,
subdivision (d), do not include convictions for offenses which
were not section 1192.7, subdivision (c) or section 667.5,
subdivision (c) offenses at the time of conviction.” (Id. at
p. 1306.) As explained above, the court rejected the first
argument, holding that the determination clause “does not
require a contemporaneous characterization of a conviction but
ensures that post-conviction events will not transform the felony
into a misdemeanor (with the sole exception expressed).” (Id. at
p. 1308.)
As to the second argument, the defendant reasoned that
his 1980 and 1981 prior convictions could not qualify as strikes
because they predated the 1982 enactment of Proposition 8,
which created the “serious felony” list (Prop. 8, as approved by
voters, Primary Elec. (June 8, 1982) § 5 (Proposition 8)), and
thus did not have the status of “serious felonies” at the time of
conviction. The court rejected this argument as follows: “The
‘determination clause’ requires the ultimate sentencing court to
determine whether, as of the date of a prior conviction, a prior
conviction was a felony or misdemeanor. It does not require a
contemporaneous determination, when the prior conviction
occurred, that the conviction constituted a ‘strike’ or a ‘serious
felony’ or ‘violent felony.’ This being the case, the Three Strikes
law does apply to felony convictions predating March 7, 1994
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[the Three Strikes law’s effective date], which fit the definition
of a ‘serious felony’ or ‘violent felony’ on the relevant date [June
30, 1993]. The Three Strikes law also applies to felony
convictions which were neither ‘serious’ nor ‘violent’ felonies at
the time of conviction, but which again fit the definition of a
‘serious felony’ or ‘violent felony’ on the relevant date [June 30,
1993].” (Gonzales, supra, 37 Cal.App.4th at p. 1311.) In a
footnote, the court underscored that the determination clause
addresses only “whether the conviction was a felony or a
misdemeanor” and not whether a prior felony qualifies as
serious or violent. (Id. at p. 1311, fn. 8; see ibid. [rejecting
contrary language in Green as dicta].) The latter determination
is made in accordance with the list of serious felonies or violent
felonies on the date specified by the lock-in provision.
Subsequent cases uniformly followed this holding. In
People v. Turner (1995) 40 Cal.App.4th 733 (Turner), the
defendant, citing the determination clause, “contend[ed] the
trial court erred in sentencing him under section 667,
subdivisions (b)–(i) because his 1979 robbery conviction was not
a serious or violent felony upon the date he committed that
offense.” (Id. at p. 738.) The court agreed with Gonzales that
the determination clause “only requires a trial court to make a
determination whether as of the date of the prior conviction, the
crime was a felony or a misdemeanor.” (Id. at p. 739, citing
Gonzales, supra, 37 Cal.App.4th at pp. 1305–1311.) Application
of the Three Strikes law is “not limited to convictions that, when
experienced by a felon, qualified as ‘serious’ or ‘violent’ felonies.
The pertinent issue is whether the prior crime was a ‘serious’ or
‘violent’ felony when the new offense for which the defendant is
on trial was committed.” (Turner, at p. 739, fn. omitted; but cf.
People v. Moenius (1998) 60 Cal.App.4th 820, 827, fn. 6
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(Moenius) [noting that Turner misstated the relevant date; “the
pertinent issue is whether the prior crime was a serious or
violent felony on June 30, 1993 [the applicable lock-in date]”].)
The next case in this line, Moenius, similarly held that “a
prior serious felony conviction sustained before the effective
date of Penal Code section 1192.7 may qualify as a strike.”
(Moenius, supra, 60 Cal.App.4th at p. 827.) The defendant,
citing the determination clause, argued that his 1974 conviction
for second degree burglary could not qualify as a strike because
the concept of a “serious felony” did not come into existence until
section 1192.7 was enacted in 1982. (Moenius, at p. 825.) The
court rejected this argument, agreeing with Gonzales that the
determination clause ensures that “postconviction events will
not transform a felony into a misdemeanor” and does not
address whether a prior felony is serious or violent. (Moenius,
at p. 826.) Whether a prior felony is serious or violent is instead
determined by the list of offenses in section 1192.7(c) in effect on
the applicable lock-in date. (Id. at p. 827, fn. 6.)
The Court of Appeal in People v. O’Roark (1998)
63 Cal.App.4th 872 (O’Roark) addressed a variation of the issue
and reached the same holding. The defendant had suffered
(among other priors) a 1987 conviction for bank robbery.
(O’Roark, at p. 876.) Although the conviction occurred after the
1982 enactment of section 1192.7, the defendant argued it could
not qualify as a strike “because bank robbery was not added to
the list of serious felonies . . . until 1988.” (O’Roark, at p. 877.)
“Based on th[e] same reasoning” as in Gonzales and Moenius,
the court held that “a prior serious felony conviction sustained
before the offense resulting in that prior conviction was added
to the list of serious felonies . . . may qualify as a strike if that
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felony was in the list of serious felonies . . . on June 30, 1993.”
(O’Roark, at pp. 878–879.)
Finally, the defendant in People v. James (2001)
91 Cal.App.4th 1147 faced sentencing for various offenses
committed on March 17, 2000. He had suffered prior convictions
in 1994 for assault with a firearm (§ 245, subd. (a)(2)) and for
shooting at an inhabited dwelling or other building or vehicle
(§ 246). (James, at p. 1149.) Those prior convictions, at the
time, “were serious felonies under Penal Code section 1192.7
only if the defendant personally used a firearm or inflicted great
bodily injury” (ibid.), and there was apparently no allegation he
had committed the prior offenses in that manner. In 2000, the
passage of Proposition 21 added violations of section 245 and
violations of section 246, with no limiting conditions or
circumstances, to the list of “serious” felonies (§ 1192.7(c)(31),
(33)) and updated the lock-in date to March 8, 2000. (James, at
p. 1151.) The issue was whether the prior convictions qualified
as strikes even if they were not serious felonies at the time of
those convictions. The court held that the lock-in provision
“require[s] that, if the current offense was committed on or after
March 8, 2000, a determination whether a prior conviction
alleged as a serious felony is a prior strike must be based on
whether the prior offense resulting in that conviction was a
serious felony within the meaning of the three strikes law on
March 8, 2000.” (Ibid.)
In sum, the case law above established three propositions
regarding Three Strikes sentencing: First, the determination
clause as originally enacted and as retained in section 667(d)(1)
addresses whether a prior conviction is a felony or
misdemeanor, not whether a prior felony is serious or violent.
Second, the felony status of a prior conviction must be
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Opinion of the Court by Liu, J.
determined not on the date of the prior conviction but by
reference to the date of the prior conviction, and postconviction
events cannot transform a felony into a misdemeanor except
when the initial sentencing automatically converts a felony into
a misdemeanor. Third, whether a prior felony conviction is for
a “serious felony” or “violent felony” is determined by the list of
felonies in section 1192.7(c) or section 667.5, subdivision (c) in
effect on the lock-in date applicable to a defendant’s current
offense, even if the prior offense preceded the classification of
those offenses as “serious” or “violent” felonies or was added to
the list of felonies after the prior offense was committed.
2.
We now address Proposition 36’s amendment of the
initiative version of the determination clause in 2012. As noted,
Proposition 36 added the words “serious or violent” to the phrase
“prior felony conviction” so that the provision reads: “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.” (§ 1170.12(b)(1), as amended by Prop. 36, § 4,
italics added.) The first part of the quoted sentence, in isolation,
would seem to indicate that the determination of whether a
prior felony is serious or violent must be made by reference to
the date of conviction. That is what the Courts of Appeal in Scott
and People v. Gonzalez concluded. But several considerations
give us pause as to whether this is what the voters intended.
To begin with, it is curious that Proposition 36 made this
change to the initiative version of the determination clause
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Opinion of the Court by Liu, J.
(§ 1170.12(b)(1)) without making a parallel change to the
legislative version of the same clause (§ 667(d)(1)), even as
Proposition 36 made other changes throughout section 667,
including various changes to section 667, subdivision (d). The
fact that Proposition 36 amended the determination clause in
the initiative version while retaining the original language in
the legislative version makes it less than clear what the voters
intended.
It is also notable that Proposition 36 left unchanged the
remainder of the sentence containing the determination clause.
That language, which says the determination at issue “is not
affected by the sentence imposed unless the sentence
automatically, upon the initial sentencing, converts the felony
to a misdemeanor” (§ 1170.12(b)(1)), continues to focus on the
felony character of a prior conviction, not whether a prior felony
is serious or violent. Proposition 36 did amend the next
sentence in the provision so that it now reads, with the changes
indicated: “None of the following dispositions shall affect the
determination that a prior serious or violent conviction is a prior
serious or violent felony for purposes of this section: . . . .”
(§ 1170.12(b)(1), as amended by Prop. 36, § 4.) This language
also continues to focus on the felony character of a prior
conviction, and Proposition 36 made no corresponding change to
the legislative version of this sentence in section 667(d)(1).
As further context, we observe that apart from the
determination clause, Proposition 36 made the same change —
adding the words “serious or violent” to describe a prior felony
conviction — multiple times throughout the legislative and
initiative versions of the Three Strikes law. In each instance,
the addition appears to have been a clarification that did not
substantively alter the text’s meaning. For example, one
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provision previously said: “The prosecuting attorney may move
to dismiss or strike a prior felony conviction allegation in the
furtherance of justice pursuant to Section 1385, or if there is
insufficient evidence to prove the prior conviction.” (Former
§ 1170.12, subd. (d)(2); see former § 667, subd. (f)(2).)
Proposition 36 amended it to read: “The prosecuting attorney
may move to dismiss or strike a prior serious or violent felony
conviction allegation in the furtherance of justice pursuant to
Section 1385, or if there is insufficient evidence to prove the
prior serious or violent conviction.” (§ 1170.12, subd. (d)(2),
italics added; see § 667, subd. (f)(2).) Another provision
previously said: “Prior felony convictions shall not be used in
plea bargaining, as defined in subdivision (b) of Section 1192.7.
The prosecution shall plead and prove all known prior felony
convictions and shall not enter into any agreement to strike or
seek the dismissal of any prior felony conviction allegation
except as provided in paragraph (2) of subdivision (d).” (Former
§ 1170.12, subd. (e); see former § 667, subd. (g).) Proposition 36
amended it to read: “Prior serious or violent felony convictions
shall not be used in plea bargaining, as defined in
subdivision (b) of Section 1192.7. The prosecution shall plead
and prove all known prior serious or violent felony convictions
and shall not enter into any agreement to strike or seek the
dismissal of any prior serious or violent felony conviction
allegation except as provided in paragraph (2) of
subdivision (d).” (§ 1170.12, subd. (e); see § 667, subd. (g).)
These additions did not alter the text’s meaning because “a prior
conviction of a felony” for purposes of the Three Strikes law had
already been defined, since the law’s inception, as a “serious
felony” or “violent felony.” (Former §§ 667(d)(1), 1170.12(b)(1).)
In all, Proposition 36 added the phrase “serious or violent” to
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Opinion of the Court by Liu, J.
describe a prior felony conviction 18 times throughout the
legislative version and 21 times throughout the initiative
version of the Three Strikes law. (Prop. 36, §§ 2, 4.)
These textual 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 in section 1170.12(b)(1). 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. As explained above (ante, at pp. 10–14), the lock-in
provision specifies the date that governs which version of the
definition of serious felony (§ 1192.7(c)) or violent felony
(§ 667.5, subd. (c)) is to be used in characterizing a defendant’s
prior conviction. 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.
The ballot materials accompanying Proposition 36 contain
nothing that address the issue before us. (Voter Information
Guide, Gen. Elec. (Nov. 6, 2012) pp. 48–53.) Proposition 36 “was
motivated in large measure by a determination that sentences
under the prior version of the Three Strikes law were excessive.”
(People v. Conley, supra, 63 Cal.4th at p. 658.) “The overarching
stated intent of the . . . Act appears threefold: 1. To ‘[r]estore
the Three Strikes law to the public’s original understanding by
requiring life sentences only when a defendant’s current
conviction is for a violent or serious crime’ (Voter Information
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Guide, Gen. Elec., supra, text of Prop. 36, § 1, p. 105); 2. to
punish a current felony more harshly, but in cases where the
current offense is not a serious or violent felony, to moderate
that harsher penalty by requiring a multiplied base term, as
opposed to an indeterminate life term, unless an exception
applies; and 3. to ensure, by virtue of those exceptions, that
particularly designated repeat offenders receive a life sentence,
even if the current offense is not [a] serious or dangerous felony.”
(Henderson, supra, 14 Cal.5th at p. 52, second alteration added.)
The analysis by the Legislative Analyst and the arguments in
favor of and against Proposition 36 focused on those purposes.
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012), pp. 48–53.)
The ballot materials provide no indication that the electorate,
whom we presume to be aware of existing laws (Henderson, at
p. 50), intended to enact a major change in how courts applying
the Three Strikes law are to determine whether a prior felony is
serious or violent.
In Henderson, we likewise confronted an issue arising
from an amendment that Proposition 36 made to the initiative
version but not the legislative version of the Three Strikes law.
(Henderson, supra, 14 Cal.5th at pp. 49–50.) Before
Proposition 36, we had construed identical provisions in the two
versions (former §§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6),
(7)) to give a court discretion to impose either concurrent or
consecutive sentences on a defendant’s current convictions for
multiple serious or violent felonies if those current felonies were
committed on the same occasion. (People v. Hendrix (1997)
16 Cal.4th 508, 513–514.) Proposition 36 amended
section 1170.12, subdivision (a)(7) — but not the parallel
provision (§ 667, subd. (c)(7)) — in a manner that arguably
removed this sentencing discretion and required consecutive
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Opinion of the Court by Liu, J.
sentencing on all new serious or violent felony convictions, even
if committed on the same occasion. (Henderson, at p. 49.) But
we rejected that reading of the amended provision.
We first found the statutory text to be “ambiguous with
respect to whether it requires that multiple qualifying felonies
must be sentenced consecutively to each other.” (Henderson,
supra, 14 Cal.5th at p. 51, italics omitted.) We then observed
that “[t]he debate over Proposition 36 did not feature a focus on
the consecutive/concurrent discretion question. As a result, it is
difficult to discern just what the electorate intended on this topic
or whether they considered it at all.” (Id. at p. 52.) Further, we
reasoned: “We cannot say that the voters spoke with a clear
voice on that topic, particularly when they took pains to make
their intent much more manifest on other aspects of the reforms
they adopted. . . . [¶] Had the drafters intended to change
sentencing discretion in the same occasion/operative facts
context, the drafters were clearly aware of how to make that
intent clear. We also presume that the voters were aware of the
longstanding Hendrix rule when they passed Proposition 36.
‘Proposition 36 neither refers to Hendrix nor states its express
intent to overrule longstanding Supreme Court precedent. . . .’
We ‘ “cannot presume that . . . the voters intended the initiative
to effect a change in law that was not expressed or strongly
implied in either the text of the initiative or the analyses and
arguments in the official ballot pamphlet.” ’ . . . In light of all
these factors, we cannot discern a clear intent to withdraw
discretion that has been recognized for a quarter century.” (Id.
at p. 53, citations omitted.)
Similarly here, we decline to infer an intent by the
electorate to supersede established authority on how courts
determine whether a prior felony conviction qualifies as serious
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Opinion of the Court by Liu, J.
or violent. The meaning of Proposition 36’s addition of “serious
or violent” before the word “felony” in section 1170.12(b)(1) is
ambiguous when the provision is considered in its entirety. And
it is suggestive that this addition occurred among dozens of
identical non-substantive changes that Proposition 36 made
throughout both versions of the Three Strikes law. With no
relevant indications in the ballot materials, we are unable to
discern an intent to depart from over 15 years of settled law that
had directed courts to determine whether a prior felony is
serious or violent by reference to the enumerated lists in effect
on the lock-in date applicable to a defendant’s current offense.
Nor can we discern any intent to otherwise disrupt the manner
in which the lock-in provision had long operated, apart from
changing the lock-in date to November 7, 2012. We conclude
here, as we did in Henderson, that in light of the particular
statutory provisions and background case law at issue,
Proposition 36’s amendment to the initiative version of the
Three Strikes law did not effect a substantive change.
C.
As the discussion above reveals, neither the lock-in
provision nor the determination clause tells us what substantive
law — whether it is current law or the law in effect at the time
of a prior offense — applies to proving the elements of an alleged
strike prior. We turn now to consider what can be gleaned from
the varying articulations of serious felonies set out in
section 1192.7(c).
We begin by observing that there is wide variation in how
serious felonies are described in the 43 paragraphs of
section 1192.7(c). The list predates the Three Strikes law and
was originally enacted in 1982 with the passage of Proposition 8.
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(Prop. 8, § 5.) From its inception, the list has not been confined
to “discrete offenses” and has consisted of “an amalgam of
different elements.” (People v. Jackson (1985) 37 Cal.3d 826,
831, 832 (Jackson).) One paragraph “refers generally to ‘any
felony punishable by death or imprisonment . . . for life.’ ”
(Jackson, at p. 832, quoting § 1192.7(c)(7).) Two paragraphs
“incorporate enhancements which may attach to any felony,”
while others “describe criminal conduct which does not
correspond precisely to the elements of any then-existing
criminal offense.” (Ibid.) We have construed these latter
paragraphs “ ‘as referring not to specific criminal offenses, but
to the criminal conduct described therein.’ ” (People v. Cruz
(1996) 13 Cal.4th 764, 773 [discussing § 1192.7(c)(18), which
defines “any burglary of the first degree” as a serious felony].)
Still other paragraphs of section 1192.7(c) make generic
references to entire categories of offenses, regardless of degree.
(E.g., § 1192.7(c)(1) [“[m]urder or voluntary manslaughter”].)
And some paragraphs refer to a specific statutory offense, such
as the one at issue here. (§ 1192.7(c)(28) [“any felony offense,
which would also constitute a felony violation of
Section 186.22”].) Even within this subcategory, the language
of the statutory cross-reference varies. (Compare § 1192.7(c)(28)
[“any felony offense, which would also constitute a felony
violation of Section 186.22”] with § 1192.7(c)(40) [“any violation
of Section 12022.53”].)
When the section 1192.7(c) list was first incorporated into
the Three Strikes law, it contained offenses that had since been
repealed. (Jackson, supra, 37 Cal.3d at p. 832.) Specifically,
“[p]aragraph (12) refers to assault by a life prisoner on a
noninmate, an offense based on section 4500, prior to
amendment in 1977. Paragraph (10) refers to assault with
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intent to commit rape or robbery . . . [which] was deleted as a
distinct crime in 1978.” (Id. at p. 832, fn. 7.) Inclusion of the
two provisions seems to indicate that the serious felony
determination for those offenses is to be made under the law at
the time of the prior conviction. By contrast, we have suggested
in dicta that various categories of prior serious felonies require
an application of current law that takes into account any
changes to the law defining the listed offense: “Often [the prior
strike] determination is purely legal with no factual content
whatever. . . . Section 1192.7, subdivision (c), lists some felonies
that are per se serious felonies, such as murder, mayhem, rape,
arson, robbery, kidnapping, and carjacking. If a defendant’s
prior conviction falls into this group, and the elements of the
offense have not changed since the time of that conviction, then
the question whether that conviction qualifies as a serious
felony is entirely legal.” (People v. Kelii (1999) 21 Cal.4th 452,
456, italics added.)
Given the substantial variation in how serious felonies are
defined in section 1192.7(c), we proceed cautiously and focus on
the provision at issue here, section 1192.7(c)(28). This provision
was not included in the list of serious felonies in the original
enactment of the Three Strikes law; it was added to the list with
the passage of Proposition 21. (Prop. 21, § 17.) The language
the voters used to add section 1192.7(c)(28) is distinctive.
Whereas many paragraphs of section 1192.7(c) refer to other
statutes with language that describes the offending conduct
followed by the phrase “in violation of [a statute]” (e.g.,
§ 1192.7(c)(33) [“discharge of a firearm at an inhabited dwelling,
vehicle, or aircraft, in violation of Section 246”], (37)
[“intimidation of victims or witnesses, in violation of
Section 136.1”], (38) [“criminal threats, in violation of
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Opinion of the Court by Liu, J.
Section 422”]), section 1192.7(c)(28) 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” (ibid.) 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.
Our dissenting colleagues do not disagree that
section 1192.7(c)(28) uses present-tense phrasing, but they
resist the consequences that flow from the voters’ choice to use
such language. It is true that the serious felony list was
originally enacted in 1982 within a statute curtailing plea
bargaining. (Prop. 8, § 7 [“Section 1192.7 is added to the Penal
Code, to read: [¶] . . . [p]lea bargaining in any case in which the
indictment or information charges any serious felony . . . is
prohibited”]; dis. opn., post, at pp. 12–13.) But at least since
section 1192.7(c)’s incorporation into the Three Strikes law, the
import of section 1192.7(c)’s list of serious felonies has not been
confined to the plea bargaining context. (Ante, at pp. 10–12
[detailing amendments to the serious felony list to expand the
Three Strikes law’s reach].) In particular, when the voters
added gang-related felonies to the list of serious felonies with
the enactment of section 1192.7(c)(28), it is not the case that the
voters’ sole intent was to restrict pretrial plea bargaining
discretion. (Dis. opn., post, at pp. 19–20 [“the addition of gang-
related felonies to the list of serious felonies for purposes of the
prior felony enhancement statute and the Three Strikes law”
reflected a desire to “ ‘punish[] recidivism’ ” for such crimes].)
32
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
The voters could have amended section 1192.7(c) with
language that makes gang-related felonies immune from
subsequent changes. Unlike section 1192.7(c)(28), some
enhancements for prior convictions are written in a manner that
requires a backward-looking inquiry. For example, the federal
sentencing guidelines impose sentencing enhancements based
on a defendant’s “prior sentence.” (U.S. Sentencing Guidelines,
§ 4A1.1 [assigning “points” for each “prior sentence” in
calculating a defendant’s criminal history category].) The
guidelines define “prior sentence” to mean “any sentence
previously imposed upon adjudication of guilt, whether by guilty
plea, trial, or plea of nolo contendere, for conduct not part of the
instant offense.” (Id., § 4A1.2, subd. (a)(1).) But California
voters made a different choice in section 1192.7(c)(28) by
requiring proof that a prior conviction “would also constitute a
felony violation of Section 186.22” in order to qualify as a prior
serious felony conviction. This phrasing is particular to
section 1192.7(c)(28), and we express no view on the meaning of
other paragraphs of section 1192.7(c).
Our reading of section 1192.7(c)(28) is bolstered by this
court’s recent interpretation of a simultaneously enacted cross-
reference to section 186.22. In Rojas, we considered the
reference to “subdivision (f) of Section 186.22” in the gang-
murder special circumstance (§ 190.2, subd. (a)(22)), which was
enacted along with section 1192.7(c)(28) in Proposition 21.
(Rojas, supra, 15 Cal.5th at pp. 565, 570–572.) Citing
established principles of construction, we explained that
“ ‘ “where the reference [to a law] 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,
33
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
but also as they may be changed from time to time . . . .” ’ ” (Id.
at p. 570.) And “ ‘ “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.” ’ ” (Ibid.) The analysis also takes into account
“ ‘other indicia of legislative intent.’ ” (Ibid.)
In construing the reference to “subdivision (f) of
Section 186.22” in the gang-murder special circumstance
(§ 190.2, subd. (a)(22)), we first noted that “the presence or
absence of language referring specifically to a statutory or
regulatory provision is not necessarily dispositive.” (Rojas,
supra, 15 Cal.5th at p. 570.) Finding that “the words of the
incorporating statute ‘do not make clear whether it
contemplates only a time-specific incorporation,’ ” we then
looked to Proposition 21’s uncodified findings and declarations.
(Rojas, at p. 571.) These sources said “ ‘death should be
available for murderers who kill as part of any gang-related
activity’ ” because of the “ ‘unique threat’ ” gang violence poses
to the public. (Id. at pp. 571–572, quoting Voter Information
Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2,
subd. (h), p. 119.) “To that end,” we said, “the electorate chose
to impose a specific punishment for gang-related murder while
relying on the generally applicable definition of ‘criminal street
gang’ in section 186.22(f). . . . [T]he reference to
section 186.22(f)’s definition of ‘criminal street gang’ in
Proposition 21 is readily understood as a reference ‘to the
general law relating to the subject in hand,’ and as such, ‘the
referring statute takes the law . . . referred to not only in [its]
34
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
contemporary form, but also as [it] may be changed from time to
time.’ ” (Rojas, at p. 572.)
Section 1192.7(c)(28)’s reference to “a felony violation of
Section 186.22,” enacted contemporaneously with the gang-
murder special circumstance, is even more general than
section 190.2, subdivision (a)(22)’s reference to “subdivision (f)
of Section 186.22.” Under the reasoning of Rojas, it “is readily
understood as a reference” to section 186.22 “ ‘not only in [its]
contemporary form, but also as [it] may be changed from time to
time.’ ” (Rojas, supra, 15 Cal.5th at p. 572.) Our dissenting
colleagues would distinguish Rojas based on a purported
difference between “identif[ying]” and “adopt[ing]”
section 186.22 by reference. (Dis. opn., post, at pp. 14, 15, fn. 4,
italics omitted.) We see no basis in our case law for any such
distinction.
In sum, the present conditional phrasing of
section 1192.7(c)(28) and our reasoning in Rojas support the
conclusion that current law (i.e., Assembly Bill 333) applies to
the determination of whether a prior conviction qualifies as a
prior serious felony conviction under section 1192.7(c)(28).
D.
The Attorney General’s briefing does not meaningfully
rely on the text of the Three Strikes law. He contends that with
the passage of Proposition 36 and the addition of the words
“serious or violent” to the initiative version of the determination
clause, “the electorate removed any possible ambiguity about
whether [it] is directed to the prior offense’s status as a serious
or violent felony at the time of conviction.” But tellingly, the
Attorney General does not lead with this argument or give it
much weight. He instead asserts that this case ultimately turns
35
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
on the “fundamentally backward-looking” nature of “recidivist
laws,” which increase punishment “based on a defendant’s
status” as a recidivist, and that no intervening change in the law
can “negate a person’s status as one who was previously
convicted of a serious offense and therefore is deserving of
increased punishment in a subsequent case.” Our dissenting
colleagues echo these arguments. (Dis. opn., post, at pp. 17–22.)
We do not dispute that the Three Strikes law is backward-
looking in the sense that it authorizes harsher penalties for
defendants who have previously been convicted of a serious or
violent felony. But whether a defendant has suffered a prior
conviction for a serious or violent felony is a determination made
by courts in a current proceeding — i.e., when a defendant has
been convicted of a new felony. (See Sipe, supra, 36 Cal.App.4th
at p. 478 [“There is no reason . . . to require a court to determine
whether a conviction may serve as a ‘strike’ unless and until the
defendant commits another felony.”]; People v. Briceno (2004)
34 Cal.4th 451, 465 [“section 1192.7(c)(28) turns any prior gang-
related felony offense into a strike if a defendant reoffends”
(italics added)].) That determination is backward-looking with
regard to whether a prior conviction is for a felony or
misdemeanor. (See Moenius, supra, 60 Cal.App.4th at p. 826
[“postconviction events will not transform a felony into a
misdemeanor” apart from an initial sentencing that
automatically effects such a conversion].) But it is not
backward-looking, at least not in the same way, with regard to
whether a prior felony conviction is for a serious or violent
felony. (See O’Roark, supra, 63 Cal.App.4th at pp. 878–879 [a
prior felony conviction “sustained before the offense resulting in
that prior conviction was added to the list of serious felonies . . .
may qualify as a strike if that felony was in the list of serious
36
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
felonies . . . on [the lock-in date applicable to the defendant’s
current offense]”].) 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.
III.
In addition to arguing that Assembly Bill 333 applies to
the determination of whether the prosecution has proven that
their 2015 convictions qualify as prior serious felony convictions
under the Three Strikes law, Fletcher and Taylor argue that
Assembly Bill 333 applies to the analogous determination under
section 667(a) for their prior serious felony enhancements. We
agree.
The prior serious felony enhancement under
section 667(a) was enacted as part of Proposition 8. (Prop. 8,
§ 5.) Section 667(a)(1) provides in relevant part that “[a] person
convicted of a serious felony who previously has been convicted
of a serious felony in this state . . . shall receive, in addition to
the sentence imposed by the court for the present offense, a five-
year enhancement for each such prior conviction on charges
brought and tried separately.” A “ ‘serious felony’ ” is defined,
as it is in the Three Strikes law, as “a serious felony listed in
subdivision (c) of Section 1192.7.” (§ 667(a)(4).) Prior serious
felony enhancements, unlike strike priors, are not subject to the
determination clause or the lock-in provision within section 667.
(See §§ 667(d)(1) [the determination clause applies “for purposes
of subdivisions (b) to (i), inclusive” of § 667], 667.1, subds. (a) &
(b) [the lock-in date is applicable “to existing statutes in
subdivisions (c) to (g), inclusive, of Section 667”].) In this case,
we need not decide the effective date of the list of serious felonies
37
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
in section 1192.7 for purposes of section 667(a). Whether the
applicable list is what section 1192.7 specifies today or what it
specified on the lock-in date of November 7, 2012,
section 1192.7(c)(28) has been on the list since 2000 (Prop. 21,
§ 17), and we have concluded that it requires an inquiry under
current law. (Ante, at pp. 29–35.) Assembly Bill 333’s
amendments to section 186.22 thus apply to the current
determination of whether the prosecution has proven the prior
serious felony enhancement allegations in this case.
This reading of the prior serious felony enhancement is
consistent with case law suggesting that the nickel prior and
strike prior determinations are largely made in harmony, except
for divergences that result from the application of the
determination clause to one but not the other. (Cf. People v.
Ramirez (1995) 33 Cal.App.4th 559, 567 [“Section 667, when
viewed as a whole, is a comprehensive scheme for the sentencing
of serious recidivists” such that the prior felony enhancement
and the Three Strikes “provisions are not inconsistent with each
other”]; Park, supra, 56 Cal.4th at pp. 802–803 [the reduction of
a prior offense from a felony to a misdemeanor meant it could no
longer support a nickel prior enhancement, but could still be
used as a strike prior because of the determination clause].)
Just as the Courts of Appeal considered whether felony
convictions preceding the Three Strikes law could be used as
strikes, we addressed whether felony convictions preceding
Proposition 8 could be the basis for prior serious felony
enhancements. (Jackson, supra, 37 Cal.3d at p. 833.) We
“reject[ed]” the contention that serious felony enhancements
under section 667(a) cannot be based on crimes that “antedated
the enactment of Proposition 8.” (Jackson, at p. 833.)
“Section 667 plainly was intended to take account of antecedent
38
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
crimes; it includes in the list incorporated from section 1192.7
crimes which were repealed prior to the effective date of the
initiative. . . . The basic purpose of the section — the deterrence
of recidivism — would be frustrated by a construction which did
not take account of prior criminal conduct.” (Ibid.)
This language in Jackson was cited by the Court of Appeal
in Green to arrive at a parallel interpretation of the
determination clause. (Green, supra, 36 Cal.App.4th at p. 283.)
The court “view[ed] the application of the ‘three strikes’ law as
akin to the enactment of section 667, subdivision (a).” (Ibid.)
Just as Jackson had held that section 667(a) “applied to prior
felonies where the convictions antedated the effective date of
that law,” Green rejected defendant’s reading of the
determination clause to “mean[] that the court is to make the
determination on the actual date of the prior conviction.”
(Green, at pp. 283, 282.) To find otherwise would have created
a split between the analysis of strike priors and prior serious
felony enhancements despite the fact that the two provisions
contain the same definition of “serious” felonies by reference to
section 1192.7(c) and have been repeatedly reenacted together.
(See People v. Ramirez, supra, 33 Cal.App.4th at p. 567 [“When
the Legislature amended [section 667]” to enact the Three
Strikes law, “it reenacted the five-year enhancement provisions
in the same statute as the new provisions”]; Prop. 36, § 2
[reenacting the entirety of § 667].) Here, as to the applicability
of Assembly Bill 333, we construe the prior serious felony
determination for section 667(a) in parallel with the analogous
determination for the Three Strikes law.
39
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
IV.
In this case, the prosecution alleged that Fletcher and
Taylor each suffered a prior conviction in 2015 for unlawful
possession of a firearm (§ 29800, subd. (a)(1)) committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The
only evidence introduced to prove these allegations consisted of
two abstracts of judgments — one for Fletcher and one for
Taylor. These abstracts of judgments show simply that Fletcher
and Taylor were each convicted in 2015 for unlawful possession
of a firearm (§ 29800, subd. (a)(1)) with an enhancement under
section 186.22, subdivision (b)(1)(A)). They provide no
information regarding the evidence used to obtain these
convictions or Fletcher’s or Taylor’s underlying conduct.
To assess these strike prior allegations, we note that
Fletcher and Taylor committed their current offenses in
December 2020; we thus look to the list of “serious” felonies in
section 1192.7(c) “as [it] read on November 7, 2012” to determine
whether their 2015 prior convictions qualify as serious felonies
for purposes of the Three Strikes law. (§§ 667.1, subd. (a),
1170.125, subd. (a).) On November 7, 2012, the list of “serious”
felonies included “any felony offense, which would also
constitute a felony violation of Section 186.22.”
(§ 1192.7(c)(28).) To assess Fletcher’s and Taylor’s prior serious
felony enhancements, we note that regardless of the effective
date of the list of serious felonies under section 1192.7(c), the list
includes “any felony offense, which would also constitute a
felony violation of Section 186.22.” (§ 1192.7(c)(28); see
§ 667(a)(1), (4).) As explained above, current law governs
whether Fletcher’s and Taylor’s 2015 convictions “would also
constitute” a felony violation of section 186.22 for purposes of
40
PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
the Three Strikes law and prior serious felony enhancements.
(§ 1192.7(c)(28).)
Under Estrada and Tran, the current law applicable to
this nonfinal proceeding includes Assembly Bill 333’s
redefinition of the elements of gang offenses and enhancements
under section 186.22. There is no indication that Fletcher’s or
Taylor’s 2015 conviction was obtained under Assembly Bill 333’s
more stringent requirements, and the abstracts of judgment for
their 2015 convictions do not alone prove the elements of the
alleged prior serious felony and strike prior enhancements
beyond a reasonable doubt. The appropriate remedy is reversal
of the findings on these enhancements for retrial under the
correct law. Although our dissenting colleagues say retrial is
invariably “an exercise in futility” (dis. opn., post, at p. 22), we
see no basis for such a speculative and categorical assertion in
light of the many circumstances in which this issue may arise.
To be clear, although aspects of Fletcher’s and Taylor’s
briefing suggest that the application of Assembly Bill 333 to the
inquiry under section 1192.7(c)(28) is the product of Estrada
principles, neither the meaning of the Three Strikes provisions
we elucidate today nor our conclusion that section 1192.7(c)(28)
requires an inquiry under current law involves an application of
Estrada. Estrada’s applicability to this case is solely a function
of the procedural posture of Fletcher’s and Taylor’s appeal:
Their appeals were pending and their judgments were not final
when Assembly Bill 333 went into effect.
Finally, as the Attorney General acknowledges, this
application of Assembly Bill 333 does not alter the meaning of
section 1192.7(c)(28) (see ante, at pp. 12–13) and therefore does
not unconstitutionally amend Proposition 21. (Cf. Rojas, supra,
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PEOPLE v. FLETCHER
Opinion of the Court by Liu, J.
15 Cal.5th at pp. 570–572.) Nor does it unconstitutionally
amend Proposition 36’s establishment of November 7, 2012 as
the lock-in date applicable to Fletcher’s and Taylor’s current
offenses.
CONCLUSION
Assembly Bill 333 applies to the determination of whether
a prior conviction qualifies as a serious or violent felony under
section 1192.7(c)(28) for purposes of the Three Strikes law and
prior serious felony enhancements, and this application of
Assembly Bill 333 does not unconstitutionally amend
Proposition 21 or Proposition 36. We disapprove People v. Scott,
supra, 91 Cal.App.5th 1176, People v. Aguirre, supra,
96 Cal.App.5th 488, and People v. Gonzalez, supra,
98 Cal.App.5th 1300 to the extent they are inconsistent with
this opinion. We vacate the true findings that Fletcher’s and
Taylor’s 2015 convictions qualify as prior serious felony
convictions, and direct the Court of Appeal to remand the matter
to the trial court for any retrial of those allegations, applying the
elements of section 186.22 as amended by Assembly Bill 333.
LIU, J.
We Concur:
KRUGER, J.
GROBAN, J.
EVANS, J.
42
PEOPLE v. FLETCHER
S281282
Dissenting Opinion by Chief Justice Guerrero
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. It is also unsupported by the plain
language of the relevant statutes and the intent of the voters
and the Legislature that enacted them. I cannot agree.
The statutes speak of a defendant “who previously has
been convicted of a serious felony in this state” (Pen. Code, § 667,
subd. (a)(1)) or who has suffered “one or more prior serious or
violent felony convictions” (id., §§ 667, subd. (c), 1170.12,
subd. (a)).1 By repeatedly invoking the concept of prior or
previous convictions, the statutes necessarily and logically look
backward to the conviction itself to determine its nature.
“ ‘[U]nder the three strikes law “when guilt is established, either
by plea or verdict, the defendant stands convicted and thereafter
has a prior conviction.” ’ ” (People v. Laino (2004) 32 Cal.4th
878, 896 (Laino).) Where a serious felony is described by
reference to a violation of a particular statute — here,
1
Subsequent statutory references are to the Penal Code
unless otherwise noted.
1
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
section 186.22 — a prior felony conviction for a violation of that
statute is necessarily a prior serious felony conviction. A later
amendment to the statute does not affect a prior conviction for
violation of the statute. The prior conviction remains a prior
conviction for a serious felony.
In enacting the Three Strikes law, the electorate ensured
precisely this result, that is, a prior conviction for an offense or
statutory violation identified as a serious felony would remain a
prior serious felony conviction. The 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. (§§ 667.1, 1170.125.) The electorate plainly
believed that a felony’s inclusion on the list was determinative.
Any felony violation of section 186.22, for example, is a serious
felony because a felony violation of section 186.22 is listed as a
serious felony. Subsequently changing the elements of a statute
is of no consequence to a prior conviction for violation of the
statute.
The purpose of the Three Strikes law and the prior serious
felony enhancement statute is to deter recidivism by imposing
longer prison sentences on defendants who have previously been
convicted of a serious felony and go on to commit a new felony.
It is a defendant’s prior inability to refrain from criminal
behavior that is determinative. As this court has long
recognized, “The basic purpose of the section — the deterrence
of recidivism — would be frustrated by a construction which did
not take account of prior criminal conduct.” (People v. Jackson
(1985) 37 Cal.3d 826, 833 (Jackson).)
The majority eschews this straightforward analysis and
embraces an obscure syntactical argument that no party has
2
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
raised. The majority observes that the statute identifying a
gang-related felony as a serious felony offense is phrased in the
present conditional tense. (See § 1192.7, subd. (c)(28) [referring
to “any felony offense, which would also constitute a felony
violation of Section 186.22”].) 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. (Maj. opn., ante, at p. 32; see id. at p. 33.)
The majority’s reasoning does not withstand scrutiny. To
the extent it is meaningful, the present tense phrasing is
compelled by its statutory context, which has nothing to do with
prior convictions or recidivist sentencing schemes like the Three
Strikes law. The list of serious felonies appears in a different
statute, which is concerned with restrictions on a prosecutor’s
ability to engage in plea bargaining over the felonies on the list.
(§ 1192.7, subd. (a)(2).) At that stage, prior to conviction, it is
unknown whether a charged offense will also constitute a felony
violation of section 186.22 based, for example, on a sentencing
enhancement found true by the judge or jury. The gang-related
nature of the charged offense is necessarily conditional. Its
phrasing does not provide any support for the majority’s view
that a prior conviction should be judged against current law to
determine whether it qualifies as a prior serious felony
conviction. Nor does the majority offer any other persuasive
ground for viewing the statutes in this way.
Indeed, as noted, the majority’s standard is virtually
impossible to meet. 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.” (People
v. Gallardo (2017) 4 Cal.5th 120, 138 (Gallardo).) It could never
reflect a fact that was later added as a required element of an
3
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
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. This result is
plainly contrary to the intent of the statutes, and it allows the
Legislature to accomplish what the electorate specifically
sought to prohibit through the statute’s lock-in provisions.
In this case, a jury convicted defendants Larry Lee
Fletcher and Eric Anthony Taylor, Jr., of premeditated
attempted murder and other felonies. In bifurcated
proceedings, the trial court found that Fletcher had been
convicted of one prior gang-related felony under section 186.22
and Taylor had been convicted of two prior gang-related felonies
under section 186.22. Because felony violations of
section 186.22 are identified by statute as serious felonies, each
of these prior convictions was a prior serious felony conviction
for purposes of the Three Strikes law and the prior serious
felony enhancement statute. The majority’s contrary holding is
unsupported by the plain language of the statutes,
impermissibly relieves Fletcher and Taylor from the
consequences of their criminal history, and thwarts the clear
purpose of the Three Strikes law and the serious felony
enhancement statute to punish recidivist offenders like these
defendants more harshly. I respectfully dissent.
I. STANDARDS OF INTERPRETATION
Our standards for interpreting statutes and voter
initiatives are well settled. For statutes, “our fundamental task
here is to determine the Legislature’s intent so as to effectuate
the law’s purpose. [Citation.] We begin by examining the
4
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
statute’s words, giving them a plain and commonsense meaning.
[Citation.] We do not, however, consider the statutory language
‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance
of the statute . . . in order to determine the scope and purpose of
the provision . . . . [Citation.]’ [Citation.] That is, we construe
the words in question ‘ “in context, keeping in mind the nature
and obvious purpose of the statute . . . .” [Citation.]’ [Citation.]
We must harmonize ‘the various parts of a statutory
enactment . . . by considering the particular clause or section in
the context of the statutory framework as a whole.’ ” (People v.
Murphy (2001) 25 Cal.4th 136, 142.) “If, after this analysis, ‘the
statute is ambiguous, we may consider a variety of extrinsic
aids,’ including legislative history.” (People v. Rhodius (2025)
17 Cal.5th 1050, 1058.)
“ ‘In interpreting a voter initiative . . . we apply the same
principles that govern statutory construction. [Citation.] Thus,
“we turn first to the language of the statute, giving the words
their ordinary meaning.” [Citation.] The statutory language
must also be construed in the context of the statute as a whole
and the overall statutory scheme [in light of the electorate’s
intent]. [Citation.] When the language is ambiguous, “we refer
to other indicia of the voters’ intent, particularly the analyses
and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.] In other words, ‘our primary purpose is
to ascertain and effectuate the intent of the voters who passed
the initiative measure.’ ” (People v. Briceno (2004) 34 Cal.4th
451, 459 (Briceno).)
II. STATUTORY TEXT
The prior serious felony enhancement statute provides, “A
person convicted of a serious felony who previously has been
5
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
convicted of a serious felony in this state or of any offense
committed in another jurisdiction that includes all of the
elements of any serious felony, shall receive, in addition to the
sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought
and tried separately.” (§ 667, subd. (a)(1), italics added.)
“ ‘[S]erious felony’ means a serious felony listed in
subdivision (c) of Section 1192.7.” (§ 667, subd. (a)(4).)
The Three Strikes law as enacted by the Legislature
applies “if a defendant has been convicted of a felony and it has
been pled and proved that the defendant has one or more prior
serious or violent felony convictions.” (§ 667, subd. (c), italics
added.) “[A] prior conviction of a serious or violent felony shall
be defined as: [¶] (1) An offense defined in subdivision (c) of
Section 667.5 as a violent felony or an offense defined in
subdivision (c) of Section 1192.7 as a serious felony in this state.
The determination of whether a prior conviction is a prior felony
conviction for purposes of subdivisions (b) to (i), inclusive, 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.” (§ 667, subd. (d).)
The initiative version of the Three Strikes law similarly
applies “if a defendant has been convicted of a felony and it has
been pled and proved that the defendant has one or more prior
serious or violent felony convictions.” (§ 1170.12, subd. (a),
italics added.) The definition of “a prior serious or violent
conviction of a felony” similarly references section 667.5,
subdivision (c) and section 1192.7, subdivision (c). (§ 1170.12,
subd. (b).) It goes on, “The determination of whether a prior
conviction is a prior serious or violent felony conviction for
6
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
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.” (Id., subd. (b)(1).)
The statutes refer to a person “who previously has been
convicted of a serious felony” (§ 667, subd. (a)(1)) or a person who
“has one or more prior serious or violent felony convictions”
(§§ 667, subd. (c), 1170.12, subd. (a)). Like the prior serious
felony enhancement statute, “[t]he Three Strikes scheme comes
into play when a defendant is charged with new felony offenses
but has previously been convicted of designated serious or
violent felonies.” (People v. Henderson (2022) 14 Cal.5th 34, 43.)
By invoking a previous or prior conviction, the statutes
necessarily look backward. It is “ ‘ “the nature of the conviction
[that] is at issue” ’ ” (Gallardo, supra, 4 Cal.5th at p. 129), and
the question for a trial court considering a prior conviction
allegation is whether “ ‘the conviction is of the type that subjects
the defendant to increased punishment under California law’ ”
(id. at p. 130). A court does not determine whether a defendant
may currently be convicted of a specified offense; it determines
whether a defendant has been convicted of the offense. “ ‘Indeed,
it is settled that for purposes of a prior conviction statute, a
conviction occurs at the time of entry of the guilty plea [or
verdict].’ ” (Laino, supra, 32 Cal.4th at pp. 895–896.) Thus,
“ ‘under the three strikes law “when guilt is established, either
by plea or verdict, the defendant stands convicted and thereafter
has a prior conviction.” ’ ” (Id. at p. 896.)
Consistent with this approach, the initiative version of the
Three Strikes law directs that “[t]he 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
7
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
prior conviction.” (§ 1170.12, subd. (b)(1), italics added.) In
other words, a court must look to the date of the prior conviction
to determine its nature, and it is not affected by subsequent
developments. (Ibid.) It is undisputed, for example, that a
conviction under a statute identified as a serious felony will
remain a prior serious felony conviction even if the underlying
statute is repealed. (Jackson, supra, 37 Cal.3d at p. 833.)2
Here, the relevant inquiry is whether the prior conviction
was for “any felony offense, which would also constitute a felony
violation of Section 186.22.” (§ 1192.7, subd. (c)(28).) This
definition includes the substantive offense of active
participation in a criminal street gang (§ 186.22, subd. (a)) as
well as “any felony offense committed for the benefit of a
criminal street gang under the section 186.22[,
subdivision] (b)(1) gang sentence enhancement.” (Briceno,
supra, 34 Cal.4th at p. 459.)
Where a serious felony is defined by reference to a specific
offense or violation under California law, the application of this
definition to a prior conviction is straightforward. (People v.
Guerrero (1988) 44 Cal.3d 343, 346 [describing such application
2
The majority devotes much of its discussion to this
“determination” clause in the Three Strikes law, as well as the
analogous clause in the legislative version. (Maj. opn., ante, at
pp. 13–29; §§ 667, subd. (d)(2), 1170.12, subd. (b)(1).) The
majority’s focus is puzzling, since it believes neither clause
“answers the question before us.” (Maj. opn., ante, at p. 9; see id.
at p. 29 [determination clause does not “tell[] us what
substantive law — whether it is current law or the law in effect
at the time of a prior offense — applies to proving the elements
of an alleged strike prior”].) However, because the majority
apparently finds the determination clause significant, I address
the majority’s points in part V, post.
8
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
as “unproblematical”].) The nature of the prior conviction is
apparent. (See People v. Alfaro (1986) 42 Cal.3d 627, 631 [a
prior conviction for a specific crime “unquestionably establishes
guilt of that crime”].) The “mere fact of conviction” under the
statute “prove[s] the offense was a serious felony.” (People v.
Miles (2008) 43 Cal.4th 1074, 1082.) Here, it is undisputed that
defendants Fletcher and Taylor suffered prior felony
convictions, and those prior felony convictions were for
violations of section 186.22. Thus, under the plain language of
the statutes, defendants have suffered a prior serious felony
conviction. (§§ 667, subds. (a)(4), (d)(1), 1170.12, subd. (b)(1),
1192.7, subd. (c)(28).)
This conclusion is unaffected by the fact that
section 186.22 has subsequently been amended by Assembly
Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333)
(Stats. 2021, ch. 699). “ ‘Assembly Bill 333 essentially adds new
elements to the substantive offense and enhancements in
section 186.22 — for example, by requiring proof that gang
members “collectively engage” in a pattern of criminal gang
activity, that the predicate offenses were committed by gang
members, that the predicate offenses benefitted the gang, and
that the predicate and underlying offenses provided more than
a reputational benefit to the gang . . . .’ ” (People v. Tran (2022)
13 Cal.5th 1169, 1207.) But the addition of new elements
through these amendments does not change the nature of
defendants’ prior convictions. They remain prior convictions for
violations of section 186.22, and because violations of
section 186.22 are listed as serious felonies, defendants’ prior
convictions still qualify as prior serious felony convictions under
the Three Strikes law and the serious felony enhancement
statute. In other words, as one lower court has explained,
9
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
Assembly Bill 333 “does not alter our understanding of the
elements of the gang enhancement under the version of
section 186.22 in effect at the time defendant’s prior conviction
became final, and therefore cannot change the status of
defendant’s prior conviction as a prior strike.” (People v.
Gonzalez (2024) 98 Cal.App.5th 1300, 1313, review granted
Apr. 10, 2024, S284060 (Gonzalez).) “That [defendants’] alleged
prior conviction might no longer qualify as a gang-enhanced
felony under Assembly Bill No. 333’s definitions is irrelevant.”
(People v. Aguirre (2023) 96 Cal.App.5th 488, 495, review
granted Jan. 10, 2024, S282840.)
The majority’s contrary conclusion fails to acknowledge
the significance of a “prior” or “previous[]” conviction under the
Three Strikes law and the prior serious felony enhancement
statute. (§§ 667, subds. (a)(1), (c), 1170.12, subd. (b).) The
question is not whether a defendant could currently be convicted
of a gang-related felony under section 186.22, but whether a
defendant has a prior conviction for a gang-related felony under
that statute.3 Here, defendants were previously convicted of
3
The majority observes that, in People v. Kelii (1999)
21 Cal.4th 452, this court appeared to draw a distinction
between the elements of an offense at the time of the prior
conviction and the elements of an offense at the time of
sentencing. (Maj. opn., ante, at p. 31.) We stated,
“Section 1192.7, subdivision (c), lists some felonies that are per
se serious felonies, such as murder, mayhem, rape, arson,
robbery, kidnapping, and carjacking. If a defendant’s prior
conviction falls into this group, and the elements of the offense
have not changed since the time of that conviction, then the
question whether that conviction qualifies as a serious felony is
entirely legal.” (Kelii, at p. 456.) The meaning of this statement
is unclear, and the majority correctly declines to rely on it. The
10
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
designated serious felonies, and Assembly Bill 333’s subsequent
legislative enactment does not wipe out those previous
convictions.
The majority offers a wide-ranging discussion of the Three
Strikes law and, to a lesser extent, the prior serious felony
enhancement statute. But it does not base its holding on these
statutes. (See fn. 2, ante; see also pt. V, post.) Instead, it finds
dispositive the “present conditional tense” of the reference to
section 186.22 in a different statute, section 1192.7, which
contains the list of serious felonies. (Maj. opn., ante, at p. 32.) I
disagree that the tense of this reference supports the majority’s
interpretation.
The relevant provision identifies “any felony offense,
which would also constitute a felony violation of Section 186.22”
as a serious felony. (§ 1192.7, subd. (c)(28).) The majority notes
that this provision identifies a violation of section 186.22 in the
statement would appear to apply where, as a result of a judicial
interpretation of a statute, the prior understanding of the
elements of a crime was no longer correct. Unlike legislative
changes to a statute, a judicial interpretation of a statute
declares what the law has always been. A prior conviction, even
if final, is therefore subject to collateral attack on the grounds
that the defendant’s conduct is no longer prohibited under the
statute as subsequently interpreted. (In re Scoggins (2020)
9 Cal.5th 667, 673–674; People v. Mutch (1971) 4 Cal.3d 389,
392.) Courts have held that a judicial reinterpretation of a
statute may affect the treatment of a prior conviction for a
violation of that statute. (See, e.g., People v. Strike (2020)
45 Cal.App.5th 143, 150.) This principle does not apply here
because Assembly Bill 333 was enacted by the Legislature; it
was not a judicial reinterpretation of an existing law. In any
event, as the majority notes, our observation in Kelii was dicta
and we did not consider the issue presented here. (Maj. opn.,
ante, at p. 31.)
11
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
present tense. But this present-tense phrasing does not mean
that a prior conviction for a violation of section 186.22 must
satisfy the current version of that law in order to qualify as a
prior serious felony conviction. The phrasing does not relate to
the prior conviction inquiry at all, and it does not say anything
about the nature of the determination that is required by the
separate Three Strikes law and serious felony enhancement
statute. To the extent the present and conditional phrasing is
meaningful, it was plainly adopted to conform to the procedural
context of the statute in which it appears.
Section 1192.7 addresses plea bargaining in cases where
a serious or violent felony, or other significant offense, is alleged
in an indictment or information. (§ 1192.7, subd. (a).) For
serious felonies, plea bargaining is prohibited “unless there is
insufficient evidence to prove the people’s case, or testimony of
a material witness cannot be obtained, or a reduction or
dismissal would not result in a substantial change in sentence.”
(Id., subd. (a)(2); see generally People v. Barao (2013)
218 Cal.App.4th 769, 775–776.)
Plea bargaining generally occurs prior to trial, before a
defendant has been convicted. At that point, a defendant may
be facing felony charges, and the prosecution may allege a
violation of section 186.22. But whether a felony offense would
also constitute a felony violation of section 186.22 is conditional
on the findings of the trier of fact or the defendant’s guilty plea.
Section 186.22, subdivision (b) describes an additional term of
imprisonment for gang-related felonies, but a trier of fact must
make the required findings before a violation may be found. The
present conditional tense of the serious felony identification
flows directly from the conditional nature of a section 186.22
violation at that stage and, perhaps, from the possibility that
12
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
the charging decision of the prosecutor may not be relevant to
what “would also constitute” a violation. (§ 1192.7,
subd. (c)(28).) The majority is incorrect that this phrasing
indicates anything about whether a felony conviction can serve
as a prior serious felony conviction where a felony violation of
section 186.22 has been established. (See Gonzalez, supra,
98 Cal.App.5th at p. 1314, review granted [rejecting a similar
argument].)
The majority suggests that the electorate would have used
the past tense to identify a section 186.22 violation had it
intended prior felony violations of section 186.22 to serve as
prior serious felony convictions. It offers, as examples, “ ‘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.’ ” (Maj. opn., ante, at p. 32.) But
these past tense examples make no sense in the context of the
statute in which this language appears. Prior to trial, it cannot
be said that a felony offense constituted a felony violation of
section 186.22 or was a felony violation of section 186.22
because no trier of fact has made that determination.
In any event, the majority is wrong to suggest that such
past tense phrasing was required. “The Legislature [or
electorate] need not use any ‘magic words,’ as long as its intent
is clear.” (People v. Pacheco (1985) 176 Cal.App.3d 100, 103;
see In re Mehdizadeh (2003) 105 Cal.App.4th 995, 1004 [“The
Supreme Court . . . has never prescribed any ‘magic words’ the
Legislature or the electorate must use to make their purposes
explicit”].) Here, the Three Strikes law and the prior serious
felony enhancement statute each speak in terms of a defendant
who “has one or more prior serious or violent felony convictions”
(§§ 667, subd. (c), 1170.12, subd. (a)) or “who previously has
13
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
been convicted of a serious felony” (§ 667, subd. (a)(1)). This
language makes clear that a prior conviction for a serious felony
is determinative, not whether the prior conviction conforms to
current law defining the felony.
The majority also cites the so-called reference canon to
support its view that a prior conviction for a violation of
section 186.22 must satisfy current section 186.22. (Maj. opn.,
ante, at pp. 33–35.) It posits that this reference is a general
reference rather than a specific reference, and as such it “ ‘is
readily understood as a reference’ to section 186.22 ‘ “not only in
[its] contemporary form, but also as [it] may be changed from
time to time.” ’ ” (Maj. opn., ante, at p. 35.) The extent of the
majority’s reliance on this principle is unclear, since it would
appear to apply to other listed felonies, which the majority
otherwise takes pains to distinguish. (Maj. opn., ante, at pp. 9,
31, 33.) In any event, assuming the majority believes this
principle is relevant, the majority is mistaken. The reference
canon does not apply to the issue under review here. The
reference to section 186.22 in the list of serious felonies
identifies a serious felony by reference to that section; it does not
adopt the elements of section 186.22 for its own use.
This distinction is apparent from the lock-in provisions of
the Three Strikes law. (§§ 667.1, 1170.125.) I agree with the
majority that these provisions “serve[] to lock in the list of
serious felonies in section 1192.7[, subdivision] (c) as it existed
on the specified date” (maj. opn., ante, at p. 10) and they do not
lock in “the elements of those felonies as they existed on the lock-
in date” (id. at p. 13). But that means the list is significant, not
the underlying elements of any listed offense. A conviction for a
listed offense is a conviction for a serious felony, and a prior
conviction for a listed offense is a prior serious felony conviction.
14
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
The elements of the underlying serious felony are irrelevant in
this context. It is the fact of a conviction for a listed felony that
is determinative.
The distinction between identification of a serious felony
and adoption of the serious felony’s elements is confirmed by the
list’s inclusion of offenses that have subsequently been repealed.
Under the majority’s view, and consistent with the reference
canon the majority adopts, the repeal of the underlying statute
defining the felony would mean that no prior conviction for that
felony could serve as a prior serious felony conviction. The
elements of the underlying felony would no longer exist, so there
would be no way to satisfy them. The majority accepts that we
have rejected this view, and it candidly admits that inclusion of
these repealed felonies “seems to indicate that the serious felony
determination for those offenses is to be made under the law at
the time of the prior conviction.” (Maj. opn., ante, at p. 31.) But
it inexplicably fails to admit the obvious implication that other
listed felonies should be treated the same way.4
Indeed, under the majority’s view of the reference to
section 186.22 as a general reference, the lock-in provisions
4
The majority relies on People v. Rojas (2023) 15 Cal.5th
561 (maj. opn., ante, at pp. 33–35), but it does not support the
majority’s use of the reference canon here. The statute at issue
in Rojas describes the gang-murder special circumstance in part
by reference to the statutory definition of a criminal street gang.
It provides, “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.” (§ 190.2, subd. (a)(22).) This statute plainly
adopts the definition of a criminal street gang for its own
purposes, i.e., proof of the gang-murder special circumstance.
15
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
would be almost meaningless. The Legislature could expand or
contract the reach of any identified statute to add or remove
offenses considered serious felonies, not only going forward but
for all time. For example, one serious felony is identified as “any
violation of Section 12022.53.” (§ 1192.7, subd. (c)(40).)
Section 12022.53 defines several sentencing enhancements for
personal use of a firearm in connection with certain felonies.
Under the majority’s view, the Legislature could repeal and
replace section 12022.53 with a prohibition on possessing a
controlled substance or narcotic drug (see Health & Saf. Code,
§ 11350). Following such amendment, and notwithstanding the
inclusion of Penal Code section 12022.53 on the list of serious
felonies, prior convictions for violation of section 12022.53 could
not serve as prior serious felony convictions under the Three
Strikes law. By contrast, a prior felony conviction for possessing
a controlled substance or narcotic drug could be a prior serious
felony conviction. The lock-in provisions would no longer serve
“ ‘to ensure measured implementation of which offenses may be
used as strike priors.’ ” (Maj. opn., ante, at p. 12.) The list
itself — which the Legislature and the electorate have treated
as determinative — would become irrelevant. The majority
identifies no persuasive basis for sanctioning this unpredictable
and confusing approach.
In sum, based on the plain language of the Three Strikes
law and the prior serious felony enhancement statute, a prior
conviction for a felony violation of section 186.22 is a prior
serious felony conviction. The statutes ask whether a defendant
has previously been convicted of a serious felony, not whether a
defendant’s prior conviction would satisfy current law defining
that felony. However, to the extent the language of the statutes
allows any ambiguity in their operation, the purpose and intent
16
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
of the statutes — as well as the impossibility of the standard
adopted by the majority — make clear that a defendant’s prior
conviction should not be judged against current law. I discuss
these indications of legislative and voter intent in the next
section.
III. PURPOSE AND INTENT
The Three Strikes law and the prior serious felony
enhancement statute share the same purpose: to deter
recidivism by imposing longer sentences on defendants who
have previously committed one or more serious felonies.
(See Jackson, supra, 37 Cal.3d at p. 833 [“basic purpose” of the
prior serious felony enhancement statute is “deterrence of
recidivism”]; People v. Dotson (1997) 16 Cal.4th 547, 552
(Dotson) [“unambiguous purpose” of the Three Strikes Law “is
to provide greater punishment for recidivists”].)
The prior serious felony enhancement statute (§ 667,
subd. (a)) was adopted by the electorate in 1982 as part of
Proposition 8 (Primary Elec. (June 8, 1982)). “[T]he primary
stated purpose of Proposition 8 is to deter the commission of
crimes.” (People v. Smith (1983) 34 Cal.3d 251, 258.) Its
provisions were explicitly described as “ ‘necessary and proper
as deterrents to criminal behavior and to serious disruption of
people’s lives.’ ” (Ibid., italics omitted.) The prior serious felony
enhancement statute, in particular, was intended “to discourage
persons from repeating serious felonies.” (People v. Armstrong
(1992) 8 Cal.App.4th 1060, 1068.) In enacting the statute, the
electorate “had the interest ‘ “expressed in all recidivist statutes,
in dealing in a harsher manner with those who by repeated
criminal acts have shown that they are simply incapable of
17
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
conforming to the norms of society as established by its criminal
law.” ’ ” (Ibid.)
When it enacted its version of the Three Strikes law, the
Legislature declared, “It is the intent of the Legislature in
enacting subdivisions (b) to (i), inclusive, to ensure longer prison
sentences and greater punishment for those who commit a
felony and have been previously convicted of one or more serious
or violent felony offenses.” (§ 667, subd. (b).) The law was
enacted as an urgency statute “ ‘to protect the public from the
imminent threat posed by those repeat offenders.’ ” (People v.
Cartwright (1995) 39 Cal.App.4th 1123, 1133, quoting
Stats. 1994, ch. 12, § 2.)
Similarly, “the voters’ stated intent” in enacting the
initiative version of the Three Strikes law was “ ‘to ensure longer
prison sentences and greater punishment for those who commit
a felony and have been previously convicted of serious and/or
violent felony offenses.’ ” (Dotson, supra, 16 Cal.4th at p. 556,
quoting Ballot Pamp., text of Prop. 184, Gen. Elec. (Nov. 8, 1994)
p. 64.) “[T]he voters sought to deter recidivism or, in the
vernacular of the ballot pamphlet, to keep ‘career
criminals . . . behind bars.’ ” (People v. Nava (1996)
47 Cal.App.4th 1732, 1738.) The initiative’s focus on “[r]epeat
[o]ffenders” was reflected in its ballot title: “Increased
Sentences. Repeat Offenders. Initiative Statute.” (Ballot
Pamp., title of Prop. 184, at p. 32.) It was also reflected in the
law’s colloquial title, Three Strikes and You’re Out, which refers
to the consequences for a defendant who has two prior serious
or violent felony convictions and is convicted of a third
qualifying offense. (People v. Vargas (2014) 59 Cal.4th 635,
638.) “The typical third strike situation thus involves a criminal
offender who commits a qualifying felony after having been
18
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
afforded two previous chances to reform his or her antisocial
behavior, hence the law’s descriptive baseball-related phrase,
‘ “Three Strikes and You’re Out.” ’ ” (Ibid.)
Further, in adopting Proposition 21 (Primary Elec.
(Mar. 7, 2000)), which added gang-related felonies to the list of
qualifying serious offenses, the voters reaffirmed this intent. In
its uncodified findings and declarations section, Proposition 21
stated, “Vigorous enforcement and the adoption of more
meaningful criminal sanctions, including the voter-approved
‘Three Strikes’ law, Proposition 184, has resulted in a
substantial and consistent four year decline in overall crime.”
(Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 2,
subd. (c), p. 119.) But, according to the initiative, juvenile and
gang-related crime remained a serious threat. Thus, the
initiative proposed “[d]ramatic changes” to the treatment of
such crime, including the addition of gang-related felonies to the
list of serious felonies for purposes of the prior felony
enhancement statute and the Three Strikes law. (Id., § 2,
subd. (k), p. 119.) In the ballot argument in favor of the
initiative, voters were informed that the initiative “strengthens
anti-gang laws making violent gang-related felonies ‘strikes’
under the Three Strikes law.” (Id., argument in favor of
Prop. 21, p. 48, capitalization omitted.)
As one lower court summarized, “The state has a
compelling interest in controlling crime and preventing and
punishing recidivism. [Citations.] California courts have
repeatedly held that when a defendant’s criminal conduct has
been proven to be immune from ordinary modes of punishment,
one of the duties of the judiciary is to protect the public by
utilizing recidivist sentencing statutes to incarcerate such
persons. [Citations.] The habitual offender finding concerns the
19
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
status of the defendant as one who has not in the past obeyed the
law. [Citation.] [¶] The three strike laws were enacted to
promote this compelling interest in the protection of public
safety and in punishing recidivism.” (People v. Castello (1998)
65 Cal.App.4th 1242, 1250–1251, italics added.)
The statutes’ unambiguous focus on recidivism and
deterrence supports an interpretation that gives effect to a
defendant’s prior conviction for a serious felony. The purposes
of these statutes would be frustrated if they were interpreted to
require prior convictions to satisfy current law in order to
qualify as prior serious or violent felony convictions.
(See Jackson, supra, 37 Cal.3d at p. 833 [“The basic purpose of
the section — the deterrence of recidivism — would be
frustrated by a construction which did not take account of prior
criminal conduct”].) Recidivist offenders would be punished not
based on their prior convictions, but on the retrospective
application of current law. This result would be plainly contrary
to the intent of the statutes to impose longer sentences based on
a defendant’s prior inability to follow the law.
My interpretation of the Three Strikes law and the prior
serious felony enhancement statute is also consistent with well-
settled principles governing recidivist statutes more generally.
For example, in People v. McConnell (1937) 20 Cal.App.2d 196,
the Court of Appeal rejected an argument, similar to the
argument here, that a prior conviction for violation of a certain
statute could no longer serve as a prior conviction following an
amendment to the statute. The prior conviction at issue was a
prior felony conviction for grand larceny. (Id. at p. 197.) After
the defendant suffered the prior conviction, the Legislature
raised the threshold for grand larceny, such that the amount of
the prior theft no longer supported a felony conviction. (Ibid.)
20
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
The defendant contended the current version of the statute
applied retroactively to his prior conviction. (Ibid.) The court
found “no merit in this contention.” (Ibid.) The relevant
recidivist statute “contains no provision that the prior felony
must be such an offense at a subsequent date of prosecution.
The date of conviction, therefore, is the time to be considered in
determining whether or not the offense was a felony at the
subsequent trial.” (Ibid.) We discussed and approved of this
reasoning in In re Harincar (1946) 29 Cal.2d 403, 407.
More recently, the United States Supreme Court
unanimously held that an ameliorative change to federal law —
removing a drug from the schedule of controlled substances —
would not affect a recidivist allegation based on a prior federal
conviction involving the drug. (Brown v. United States (2024)
602 U.S. 101, 112 (maj. opn. of Alito, J.) [“Any crime contained
in the [Controlled Substances Act (CSA)] is an offense ‘under the
[CSA].’ The standard ‘Judgment in a Criminal Case’ used in
federal courts indicates whether a defendant was convicted and
sentenced for such an offense, and a later change in a federal
drug schedule cannot change that fact” (fn. omitted)]; id. at
p. 136 (dis. opn. of Jackson, J.) [“As the majority notes, this
definition turns solely on ‘whether a defendant was convicted
and sentenced for such an offense, and a later change in a
federal drug schedule cannot change that fact’ ”].)
Similarly, in McNeill v. United States (2011) 563 U.S. 816,
the high court considered whether a prior conviction that
qualified as a “ ‘serious drug offense’ ” under the Armed Career
Criminal Act (18 U.S.C. § 924(e); ACCA) was affected by a
subsequent amendment to the statute of conviction. (McNeill,
at p. 817.) The high court unanimously held that it was not.
The court explained, “The statute requires the court to
21
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
determine whether a ‘previous convictio[n]’ was for a serious
drug offense. The only way to answer this backward-looking
question is to consult the law that applied at the time of that
conviction.” (Id. at p. 820.) Even though the ACCA phrases the
inquiry in the present tense, the statute “is concerned with
convictions that have already occurred.” (McNeill, at p. 820.)
Thus, whether the prior conviction satisfied the ACCA’s
definitions “can only be answered by reference to the law under
which the defendant was convicted.” (McNeill, at p. 820.)
Here, too, the Three Strikes law and the prior serious
felony enhancement statute are concerned with convictions that
have already occurred, i.e., prior convictions. At issue is the
nature of the prior conviction (Gallardo, supra, 4 Cal.5th at
p. 129), not whether the prior conviction conforms to current law
defining the offense. The nature of the prior conviction is
determined by looking at the conviction itself, as of the date of
its imposition. It is not affected by subsequent amendments to
the statute of conviction.
IV. THE MAJORITY’S IMPOSSIBLE STANDARD
The majority’s interpretation of the Three Strikes law and
the prior serious felony enhancement statute is unsupported by
the plain language of the statutes and the intent of the
Legislature and voters that enacted them. But, more
fundamentally, it is virtually impossible to meet. The majority
remands the matter to the trial court “for any retrial of [the prior
conviction] allegations, applying the elements of section 186.22
as amended by Assembly Bill 333.” (Maj. opn., ante, at p. 42.)
What goes unacknowledged by the majority is that any such
retrial would be an exercise in futility. A conviction for a
violation of section 186.22 prior to its amendment could never
22
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
satisfy the elements of section 186.22 as amended by Assembly
Bill 333.
The determination of whether a prior conviction is a prior
serious felony conviction under the Three Strikes law or the
prior serious felony enhancement statute is made by the trial
court based on the record of conviction. (Gallardo, supra,
4 Cal.5th at pp. 125, 138.) “ ‘ “[B]ecause the nature of the
conviction is at issue, the prosecution is not allowed to go outside
the record of conviction to ‘relitigat[e] the circumstances of a
crime committed years ago . . . .’ ” ’ ” (Id. at p. 129.) Moreover,
“[t]he court’s role is . . . limited to identifying those facts that
were established by virtue of the conviction itself — that is, facts
the jury was necessarily required to find to render a guilty
verdict, or that the defendant admitted as the factual basis for
a guilty plea.” (Id. at p. 136.)
A conviction for a violation of section 186.22 prior to its
amendment by Assembly Bill 333 necessarily establishes only
those facts that were required by the statute prior to its
amendment. Such a conviction could never establish the
elements that were added by Assembly Bill 333 because they
were not yet in effect. The majority does not explain how a trial
court, reviewing such a conviction, could ever find that the
conviction satisfied the elements of section 186.22 as amended
by Assembly Bill 333.
This result confirms that the majority’s interpretation of
the Three Strikes law and the prior serious felony enhancement
statute is incorrect. The Legislature and the electorate made
clear their intent to punish recidivist offenders more harshly.
The majority’s holding today runs directly counter to that
intent. The electorate also made clear through the lock-in
23
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
provisions that the list of serious felonies must be preserved and
could not be changed except by further initiative or legislative
supermajority. The majority’s holding today effectively nullifies
that directive. Based only on a legislative enactment, which
does not even amend the recidivist statutes at issue here, the
majority wipes away decades of prior convictions for a listed
serious felony offense. Defendants who suffered these prior
convictions, like Fletcher and Taylor here, will not be subject to
increased punishment notwithstanding their recidivism. They
will be treated as if they had no such history. The Legislature
and the electorate could not have intended this result. 5
V. THE MAJORITY’S UNPERSUASIVE REASONING
The majority’s slip opinion spans some 40 pages, but
precious little of the opinion actually provides affirmative
support for its interpretation of the Three Strikes law and the
prior serious felony enhancement statute. The bulk of the
opinion — from page 9 through page 29 — addresses two
portions of the Three Strikes law, the lock-in provisions and the
determination clauses. But, in the majority’s estimation,
neither “answers the question before us” or “tells us what
substantive law . . . applies to proving the elements of an alleged
strike prior.” (Maj. opn., ante, at pp. 9, 29.) The majority
mentions other portions of the Three Strikes law and the prior
5
“A person,” like defendant Taylor here, “who has
committed and been convicted of two serious or violent felonies
before the instant offense is a recidivist who has engaged in
significant antisocial behavior and who has not benefited from
the intervention of the criminal justice system. He is the
prototype of the repeat offender for whom the three strikes
legislation was drafted.” (People v. Cooper (1996)
43 Cal.App.4th 815, 829.)
24
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
serious felony enhancement statute, but it does not attempt to
ground its interpretation in the statutes’ text. Nor does the
majority defend its interpretation by reference to any evidence
of legislative or voter intent. The core of the majority’s analysis,
therefore, is surprisingly hollow.
The majority’s affirmative points consist solely of the
“present conditional tense” phrasing of the reference to
section 186.22 in the separate statute defining serious felonies
(maj. opn., ante, at p. 32) and, potentially, the interpretive
doctrine known as the reference canon (id. at pp. 33–35). I have
explained why neither is persuasive in part II, ante.
But, as noted, the majority chooses to include in its opinion
extensive commentary, of uncertain significance, that extends
beyond these affirmative points, primarily concerning the lock-
in provisions and the determination clauses. The majority
justifies its decision by claiming that “the parties and various
Courts of Appeal” have relied on these provisions and suggested
they are dispositive. (Maj. opn., ante, at p. 8.) While it is true
the Courts of Appeal have relied on these provisions, the parties
in their briefing before this court have not. Defendants
primarily base their arguments on the retroactivity rule of
In re Estrada (1965) 63 Cal.2d 740, which the majority rightly
rejects. (Maj. opn., ante, at p. 41.) The Attorney General bases
his arguments on the text, structure, and purpose of the
statutes. As the majority itself explains, the Attorney General
believes the lock-in provisions do not affect “ ‘the basic principles
governing how courts make the serious felony determination.’ ”
(Maj. opn., ante, at p. 12.) As to the determination clauses, the
Attorney General believes they support his position, but the
majority correctly notes he “does not lead with this argument or
give it much weight.” (Maj. opn., ante, at p. 35.) The Attorney
25
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
General explains that even if the interpretation of the
determination clauses adopted by the majority were correct,
“that would not affect the analysis” because it simply means the
determination clauses do not control.
The Attorney General’s approach is correct. The majority
concludes that the determination clauses concern only how a
court determines whether a prior conviction is a felony or a
misdemeanor conviction. Thus, even if this conclusion were
correct, it does not inform how a court should make the prior
serious felony determination at issue here. It does not provide
affirmative support for the majority’s position.
Moreover, there is ample reason to believe the majority’s
interpretation of the determination clauses is incorrect. As an
initial matter, the majority misperceives the broader statutory
scheme that was in effect at the time of the authorities it
reviews. Prior to the passage of Proposition 36 (Gen. Elec.
(Nov. 6, 2012)) (Proposition 36), neither the legislative nor the
initiative version of the Three Strikes law used the phrase “prior
serious and/or violent felony” in defining eligible prior
convictions. Instead, each statute described an eligible prior
conviction as a “prior felony conviction[]” as defined therein.
The legislative version stated, “Notwithstanding any
other law, if a defendant has been convicted of a felony and it
has been pled and proved that the defendant has one or more
prior felony convictions as defined in subdivision (d), the court
shall adhere to each of the following . . . ,” and it went on to
describe the Three Strikes law’s sentencing provisions.
(Former § 667, subd. (c), enacted by Stats. 1994, ch. 12, § 1,
p. 71 italics added.) Former subdivision (d) stated,
“Notwithstanding any other law and for purposes of
26
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
subdivisions (b) to (i), inclusive, a prior conviction of a felony
shall be defined as: [¶] (1) Any offense defined in subdivision (c)
of Section 667.5 as a violent felony or any offense defined in
subdivision (c) of Section 1192.7 as a serious felony in this state.
The determination of whether a prior conviction is a prior felony
conviction for purposes of subdivisions (b) to (i), inclusive, 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.” (Former § 667, subd. (d), enacted by
Stats. 1994, ch. 12, § 1, p. 71, italics added.)
Similarly, the initiative version stated, “Notwithstanding
any other provision of law, if a defendant has been convicted of
a felony and it has been pled and proved that the defendant has
one or more prior felony convictions, as defined in
subdivision (b), the court shall adhere to the following . . . .”
(Former § 1170.12, subd. (a), enacted by Prop. 184, as approved
by voters, Gen. Elec. (Nov. 8, 1994) § 1, italics added.) Former
subdivision (b) stated, “Notwithstanding any other provision of
law and for purposes of this section, a prior conviction of a felony
shall be defined as: [¶] (1) Any offense defined in subdivision (c)
of Section 667.5 as a violent felony or any offense defined in
subdivision (c) of Section 1192.7 as a serious felony in this state.
The determination of whether a prior conviction is a prior 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.”
(Former § 1170.12, subd. (b), enacted by Prop. 184, as approved
by voters, Gen. Elec. (Nov. 8, 1994) § 1, italics added.)
27
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
Thus, as originally enacted, the language of the
determination clauses (“prior felony conviction”) matched the
language of the rest of the statutes describing the felony offenses
at issue (“prior felony convictions” or “prior conviction of a
felony”). The “determination of whether a prior conviction is a
prior felony conviction” covered the entire eligibility
determination, including whether the prior conviction was a
“prior felony conviction” as defined in the statute, i.e., a
conviction for a prior serious or violent felony. (Former §§ 667,
subd. (c), (d), 1170.12, subds. (a), (b).) This determination “shall
be made upon the date” of the prior conviction, i.e., without
regard to subsequent developments. (Former §§ 667, subd. (d),
1170.12, subd. (b).)
As the majority notes, Proposition 36 amended the
determination clause of the initiative version of the Three
Strikes law but not the legislative version. (Maj. opn., ante, at
p. 23.) By ignoring the history of these statutes, however, the
majority draws a conclusion that is precisely the opposite of
what the electorate intended.
Proposition 36 added the phrase “serious and/or violent”
felony throughout both versions of the Three Strikes law.
(Prop. 36, §§ 1, 4.) With subsequent stylistic changes, the
legislative version now states, “Notwithstanding any other law,
if a defendant has been convicted of a felony and it has been pled
and proved that the defendant has one or more prior serious or
violent felony convictions as defined in subdivision (d), the court
shall adhere to each of the following . . . ,” and it went on to
describe the Three Strikes law’s sentencing provisions. (§ 667,
subd. (c), italics added.) The initiative version now states,
“Notwithstanding any other provision of law, if a defendant has
been convicted of a felony and it has been pled and proved that
28
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
the defendant has one or more prior serious or violent felony
convictions, as defined in subdivision (b), the court shall adhere
to the following . . . .” (§ 1170.12, subd. (a), italics added.)
Similarly, in each version, the subdivision defining an eligible
offense refers to “a prior conviction of a serious or violent felony”
or “a prior serious or violent conviction of a felony,” rather than
simply a prior conviction of a felony. (§§ 667, subd. (d), 1170.12,
subd. (b).)
Viewed in context, the addition of the phrase “serious
and/or violent” (now “serious or violent”) to the initiative version
of the determination clause is consistent with the general
clarification in Proposition 36 that the prior convictions subject
to the Three Strikes law are prior serious or violent felony
convictions. The prior versions of the Three Strikes law referred
to prior felony convictions, as specifically defined, but the
versions after Proposition 36 refer specifically to prior serious or
violent felony convictions.
The initiative version of the determination clause reflects
this clarification: “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.” (§ 1170.12, subd. (b)(1).)
As the majority admits, this language indicates that “the
determination of whether a prior felony is serious or violent
must be made by reference to the date of conviction.” (Maj. opn.,
ante, at p. 23.)
The majority discounts this reading because a parallel
change was not made to the legislative version of the
29
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
determination clause. (Maj. opn., ante, at pp. 23–24; see § 667,
subd. (d)(1).) But, as the history of the statutes shows, the
change made to the initiative version is consistent with the
meaning of the statutes from their enactment. I agree with the
majority that the addition of “serious and/or violent” (now
“serious or violent”) throughout both versions of the statute
“appears to have been a clarification that did not substantively
alter the text’s meaning.” (Maj. opn., ante, at p. 24.) The
problem is the majority never explores what the text’s meaning
originally was. As noted, as originally enacted, the
determination clause in both versions of the Three Strikes law
covered the entire determination regarding whether a prior
conviction was an eligible prior felony conviction. This scope is
unchanged following Proposition 36, and it is explicitly captured
by Proposition 36’s clarifying amendment to the initiative
version.
The majority claims this interpretation of the
determination clause “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.” (Maj. opn., ante, at
p. 26.) The majority is incorrect. The determination clause
states that the determination “shall be made upon the date of
that prior conviction” (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)),
but it does not require the determination to occur on that date
or as of that date. The court instead refers to the date of the
prior conviction to determine the nature of the prior conviction,
both as a felony or misdemeanor (as the majority concludes) and
as a prior serious or violent felony offense as identified in the
lists in effect pursuant to the lock-in provisions. A defendant
30
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
who was convicted of a listed serious or violent felony prior to
the enactment of the Three Strikes law is still subject to its
provisions. A court refers to the date of the prior conviction to
determine its character, but the court employs the list of serious
and violent felonies in effect through the operation of the Three
Strikes law’s lock-in provisions to determine the law’s
applicability.
This conclusion is supported by the remaining text of the
determination clause itself. Most of the circumstances listed as
examples of dispositions that do not affect the determination
required by the statute are circumstances that do not affect the
felony or misdemeanor character of the offense. For example,
the first and second circumstances are “[t]he suspension of
imposition of judgment or sentence” and “[t]he stay of execution
of sentence.” (§§ 667, subd. (d)(1)(A), (B), 1170.12,
subd. (b)(1)(A), (B).) These circumstances do not reduce a felony
offense to a misdemeanor offense. The third circumstance,
“[t]he commitment to the State Department of State Hospitals
as a mentally disordered sex offender following a conviction of a
felony,” is expressly predicated on a felony conviction. (§§ 667,
subd. (d)(1)(C), 1170.12, subd. (b)(1)(C).) If the determination
contemplated by the determination clause were limited to the
felony or misdemeanor character of the offense, as the majority
concludes, these examples would be unnecessary. Their
inclusion shows that the determination contemplated by the
clause extends to the entire eligibility determination under the
Three Strikes law.
This interpretation of the determination clause is
supported by People v. Reed (1995) 33 Cal.App.4th 1608, People
v. Anderson (1995) 35 Cal.App.4th 587, and People v. Butler
(1996) 43 Cal.App.4th 1224. In each of those cases, a defendant
31
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
suffered a prior conviction before the effective date of the Three
Strikes law. Each defendant argued that the determination
clause required a determination on the date of the prior
conviction that the prior conviction was a prior serious or violent
felony. (Reed, at p. 1609; Anderson, at p. 600; Butler, at
p. 1246.) Each court rejected this argument as contrary to the
intent of the statute. Reed examined the word “upon” in the
determination clause and concluded it most naturally meant
“ ‘with reference’ to something.” (Reed, at p. 1611.) Thus, “the
determination whether an offense is a ‘strike’ must be made
with reference to the date of the prior conviction, and not with
reference to the sentence subsequently imposed for the prior
(unless the sentence converts the offense to a misdemeanor).”
(Ibid.; accord, Butler, at p. 1246.) Similarly, Anderson
explained, “Clearly, the Legislature intended that the qualifying
status of a conviction would be fixed upon the date of the prior
conviction, so that no subsequent actions, including those listed
in [section 667,] subdivision (d)(1)(A)–(D), could alter that
status. . . . The Legislature did not intend that the qualifying
status need be declared on the date of conviction, only that the
status would be determined in reference to that date.”
(Anderson, at pp. 600–601, italics added; see People v. Green
(1995) 36 Cal.App.4th 280, 283.)
The majority reviews several Court of Appeal opinions
that articulate the felony-misdemeanor distinction the majority
adopts today (maj. opn., ante, at pp. 14–22), but these opinions
likewise considered only the effect of the Three Strikes law on
convictions suffered before its enactment (or before a felony was
added to the list of serious or violent felonies). (See People v.
James (2001) 91 Cal.App.4th 1147, 1149–1150; People v.
O’Roark (1998) 63 Cal.App.4th 872, 875; People v. Moenius
32
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
(1998) 60 Cal.App.4th 820, 822; People v. Turner (1995)
40 Cal.App.4th 733, 738; Gonzales v. Superior Court (1995)
37 Cal.App.4th 1302, 1306; People v. Sipe (1995) 36 Cal.App.4th
468, 477.) None of these opinions considered whether a
subsequent amendment to a statute of conviction would affect
the eligibility of the prior conviction for enhanced punishment
under the Three Strikes law, and none of these opinions
considered the textual arguments described above. They are
therefore unpersuasive for purposes of our analysis here.
As noted, however, even if the majority were correct that
the determination clause addresses only whether the prior
conviction is a felony or a misdemeanor, the consequence is
simply that the determination clause is irrelevant to the issue
before the court. It does not provide any affirmative support for
the majority’s interpretation of the Three Strikes law or the
prior felony enhancement statute. It should still be rejected as
inconsistent with the text of the statutes, their intent and
purpose, and well-established principles governing recidivist
statutes more generally.
VI. CONCLUSION
The Three Strikes law and the prior serious felony
enhancement statute refer to prior serious felony convictions
and defendants previously convicted of a serious felony. This
language is purposeful. It reflects the statutes’ focus on
recidivism, i.e., a defendant’s prior inability to follow the law.
The majority’s holding today turns this focus on its head. A
defendant’s prior ability to follow the law is no longer
determinative. Instead, a defendant’s prior conviction must
satisfy current law. This standard is not only virtually
impossible to meet, but it contradicts the plain language of the
33
PEOPLE v. FLETCHER
Guerrero, C. J., dissenting
statutes and the intent of the voters and Legislature that
enacted them.
In this case, the majority’s holding means that Fletcher
and Taylor, who indisputably were convicted of prior serious
felony offenses, will be treated as if they had no such convictions.
The majority’s holding ignores the obvious contradiction
between this result and the clear intent of the Legislature and
the electorate. The majority claims the authority to change the
Three Strikes law under the guise of interpreting it, and in so
doing it reaches a result the Legislature did not enact and the
voters did not intend. I respectfully dissent.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
JENKINS, J.
34
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Fletcher
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 92 Cal.App.5th 1374
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S281282
Date Filed: August 25, 2025
__________________________________________________________
Court: Superior
County: Riverside
Judge: Louis R. Hanoian
__________________________________________________________
Counsel:
Michael C. Sampson, under appointment by the Supreme Court, and
Jean Ballantine, under appointment by the Court of Appeal, for
Defendant and Appellant Larry Lee Fletcher.
Stephen M. Lathrop, under appointment by the Supreme Court, for
Defendant and Appellant Eric Anthony Taylor, Jr.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Michael R. Johnsen, Daniel Rogers, Amanda Lloyd, Adrian R.
Contreras, Paige B. Hazard, Alan L. Amann, Warren J. Williams and
Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Michael C. Sampson
Attorney at Law
7960B Soquel Drive, #117
Aptos, CA 95003
(831) 251-4506
Stephen Lathrop
Attorney at Law
904 Silver Spur Road #430
Rolling Hills Estates, CA 90274
(310) 237-1000 ext. 3
Britton B. Lacy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9119