People v. Valenzuela

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

LUIS DONICIO VALENZUELA,

Defendant and Appellant.

S239122

Second Appellate District, Division Six

B269027

Ventura County Superior Court

2013025724

June 3, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,

in which Justices Chin, Liu, Cuéllar and Groban concurred.

Justice Corrigan filed a dissenting opinion.

Justice Kruger filed a dissenting opinion in which Justice

Corrigan concurred.

PEOPLE v. VALENZUELA

S239122

Opinion of the Court by Cantil-Sakauye, C. J.

In November 2014, California voters approved

Proposition 47, the Safe Neighborhoods and Schools Act

(Proposition 47). This initiative reclassified as misdemeanors

certain narcotics and theft offenses previously cast as felonies.

We granted review in this matter to determine what effect the

reduction of a felony conviction to a misdemeanor under

Proposition 47 has on a related conviction, subsumed within the

same judgment, for the crime of “street terrorism.” This gang

crime occurs when a “person who actively participates in any

criminal street gang with knowledge that its members engage

in, or have engaged in, a pattern of criminal gang activity . . .

willfully promotes, furthers, or assists in any felonious criminal

conduct by members of that gang.” (Pen. Code, § 186.22, subd.

(a).)1

Here, defendant stole a bicycle and on that basis was

convicted of both felony grand theft (§ 487, subd. (c)) and street

terrorism. After Proposition 47 came into effect, defendant

successfully petitioned to have the grand theft conviction

reduced to a misdemeanor. (See § 1170.18, subds. (a), (b), as

added by Prop. 47, § 14, approved by voters Gen. Elec. (Nov. 4,

2014).) The resentencing court refused to dismiss defendant’s

conviction for street terrorism, even though the theft of the

bicycle supplied the “felonious criminal conduct” necessary for

1

All subsequent undesignated statutory references are to

the Penal Code.

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the commission of this offense. (§ 186.22, subd. (a).) The Court

of Appeal affirmed.

We conclude that defendant is entitled to have his street

terrorism conviction dismissed. The reduction of defendant’s

grand theft conviction to a misdemeanor through Proposition 47

resentencing established the absence of an essential element of

the street terrorism offense — felonious criminal conduct. With

this element now absent, in the full resentencing that is to occur

under the initiative the court cannot lawfully impose sentence

on the street terrorism conviction. We therefore reverse the

judgment below.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Manny Ramirez was riding his bicycle in Oxnard

when defendant Luis Valenzuela and his friend Timothy

Medina waved at him to stop. Ramirez complied. Defendant

asked Ramirez where he was from. Defendant also warned

Ramirez that he did not like “homies from East Side,” a street

gang in Santa Barbara.

Ramirez replied that he was not a member of any gang.

Defendant nevertheless tried to punch Ramirez. After Ramirez

dodged his punch, defendant grabbed Ramirez’s bicycle and said

it was now his. Defendant gave Ramirez his address and told

him he could come to his house and get the bike back, but

Ramirez would need to bring an “older homie from the

neighborhood to vouch for him.” Medina added, “If you want

your bike back, you’ll have to throw down or fight for it.”

Ramirez left. He reported the incident to police and gave

them defendant’s address. Police recovered the bicycle from

that address and arrested defendant. The bicycle was worth

approximately $200.

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Opinion of the Court by Cantil-Sakauye, C. J.

In 2014, a jury found defendant guilty of felony grand theft

(§ 487, subd. (c) [recognizing the crime of grand theft as having

occurred “when the [stolen] property is taken from the person of

another”]) as a lesser offense of the charged crime of robbery

(§ 211). The jury also found defendant guilty of street terrorism.

(§ 186.22, subd. (a).) Enhancements alleging that defendant

committed the felony grand theft offense for the benefit of a

criminal street gang (§ 186.22, subd. (b)(1)) and had suffered a

prior serious felony conviction (§ 667, subd. (a)) and a prior

strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))

were found true. The trial court subsequently sentenced

defendant to nine years eight months in prison in connection

with these crimes and enhancements.2

The electorate approved Proposition 47 while defendant’s

appeal was pending. Among its various provisions, this

initiative redefined grand theft. At the time of defendant’s

crimes, taking property from the person of another was grand

theft, a felony offense, regardless of the property’s value. (See

§ 487, subd. (c).) Section 490.2, subdivision (a), added by

Proposition 47, altered this rule. In general, “Notwithstanding

Section 487 or any other provision of law defining grand theft,

obtaining any property by theft where the value of the money,

labor, real or personal property taken does not exceed nine

hundred fifty dollars ($950) shall be considered petty theft and

shall be punished as a misdemeanor.” (§ 490.2, subd. (a).)

The Court of Appeal affirmed the judgment on direct

appeal, and this court denied defendant’s petition for review.

2

Defendant also pleaded guilty to possession of a controlled

substance (Health & Saf. Code, § 11377, subd. (a)), for which he

received an additional eight-month term.

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Defendant then filed a petition with the trial court seeking the

reclassification and resentencing of his grand theft felony

conviction as misdemeanor petty theft. (See § 1170.18, subd.

(a).) In his petition, defendant also asserted that if this

conviction was reclassified as a misdemeanor, his conviction for

street terrorism must be dismissed because the specific criminal

conduct underlying that offense — again, theft of a bike valued

at $200 — could no longer be regarded as felonious.

The trial court resentenced the theft conviction as a

misdemeanor. (See §§ 490.2, subd. (a), 1170.18, subd. (b).) This

reduction required the dismissal of the gang enhancement,

which adheres only upon conviction of a felony. (§ 186.22, subd.

(b)(1).)3 The trial court declined to dismiss the street terrorism

conviction, however. The trial court resentenced defendant to

seven years eight months in prison. This sentence consisted of

the lower term of 16 months on the street terrorism count,

doubled to two years eight months because of the prior strike,

plus another five-year term for the serious felony enhancement.

(See §§ 186.22, subd. (a), 667, subds. (a)(1), (e)(1).)

The Court of Appeal upheld the trial court’s refusal to

dismiss the street terrorism conviction. (People v. Valenzuela

3

Section 186.22, subdivision (b)(1) provides, in pertinent

part, that “any person who is convicted of a felony committed for

the benefit of, at the direction of, or in association with any

criminal street gang, with the specific intent to promote,

further, or assist in any criminal conduct by gang members,

shall, upon conviction of that felony,” be subject to a custodial

term in addition to the one associated with the underlying felony

offense. This enhancement “punishes gang-related conduct, i.e.,

felonies committed with the specific intent to benefit, further, or

promote the gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125,

1138 (lead opn. of Corrigan, J.) (Rodriguez).)

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PEOPLE v. VALENZUELA

Opinion of the Court by Cantil-Sakauye, C. J.

(2016) 5 Cal.App.5th 449, 453.) According to the appellate court,

the fact that Proposition 47 required defendant’s theft

conviction to be regarded as “a misdemeanor for all purposes”

(§ 1170.18, subd. (k)) upon resentencing was of no consequence

to the street terrorism crime, because the gang offense was

focused “on the commission rather than the conviction of a

felony.” (Valenzuela, at p. 452, italics added.) The court

summarized, “When Valenzuela stole the bicycle, he engaged in

felonious criminal conduct. That is true regardless of his

conviction for grand theft and its subsequent reduction to a

misdemeanor. The trial court properly declined to set aside his

conviction for street terrorism.” (Id., at p. 453.)

We granted defendant’s petition for review.

II. DISCUSSION

Our analysis begins with a review of the pertinent statutes

and how they have been construed. We then consider their

application to this case. We conclude that defendant’s street

terrorism conviction should have been dismissed in the full

resentencing that defendant must receive under Proposition 47.

A. Relevant Statutes and Case Law

1. The Crime of Street Terrorism under Section

186.22, Subdivision (a)

The Legislature originally enacted section 186.22 in 1988

as part of the California Street Terrorism Enforcement and

Prevention Act, also known as the “STEP Act.” (§ 186.20 et seq.)

The STEP Act declares that “[i]t is the intent of the Legislature

in enacting this [measure] to seek the eradication of criminal

activity by street gangs by focusing upon patterns of criminal

gang activity and upon the organized nature of street gangs,

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Opinion of the Court by Cantil-Sakauye, C. J.

which together, are the chief source of terror created by street

gangs.” (§ 186.21, 2d par.)

Although defendant was charged under two different

provisions of the STEP Act, only one of these allegations is

presently at issue. The relevant crime is set forth in section

186.22, subdivision (a), which provides: “Any person who

actively participates in any criminal street gang with knowledge

that its members engage in, or have engaged in, a pattern of

criminal gang activity, and who willfully promotes, furthers, or

assists in any felonious criminal conduct by members of that

gang, shall be punished by imprisonment in a county jail for a

period not to exceed one year, or by imprisonment in the state

prison for 16 months, or two or three years.”

“The gravamen of the substantive offense set forth in

section 186.22[, subdivision] (a) is active participation in a

criminal street gang.” (People v. Albillar (2010) 51 Cal.4th 47,

55.) “[W]ith section 186.22[, subdivision] (a), the Legislature

sought to punish gang members who acted in concert with other

gang members in committing a felony regardless of whether

such felony was gang-related.” (Rodriguez, supra, 55 Cal.4th at

p. 1138 (lead opn. of Corrigan, J.), italics omitted.) The essential

elements for a conviction under section 186.22, subdivision (a)

are: “(1) active participation in a criminal street gang, in the

sense of participation that is more than nominal or passive; (2)

knowledge that the gang’s members engage in or have engaged

in a pattern of criminal gang activity; and (3) the willful

promotion, furtherance, or assistance in any felonious criminal

conduct by members of that gang.” (Albillar, at p. 56.)

The third element of the street terrorism crime is most

squarely at issue here. In analyzing this component of the

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Opinion of the Court by Cantil-Sakauye, C. J.

crime, our prior case law has articulated several principles

relevant to the present case. “[M]isdemeanor conduct . . . cannot

constitute ‘felonious criminal conduct’ within the meaning of”

this element. (People v. Lamas (2007) 42 Cal.4th 516, 524

(Lamas).) Furthermore, liability under this provision is limited

“to those who promote, further, or assist a specific felony

committed by gang members and who know of the gang’s

pattern of criminal gang activity.” (People v. Castenada (2000)

23 Cal.4th 743, 749, italics added.) In other words, the provision

“requir[es] the promotion or furtherance of specific conduct of

gang members and not inchoate future conduct.” (Rodriguez,

supra, 55 Cal.4th at p. 1137 (lead opn. of Corrigan, J.).)

2. Relevant Provisions of Proposition 47

Proposition 47 altered prior law in several important

respects. Among these changes, the initiative amended various

provisions of the Health and Safety Code and the Penal Code to

reclassify as misdemeanors certain narcotics and theft offenses

that had been denominated either felonies or “wobblers” (i.e.,

crimes capable of being charged as either felonies or

misdemeanors). The initiative created a procedure through

which persons serving a sentence for a qualifying felony may

petition to have the conviction reclassified as a misdemeanor.

(§ 1170.18, subds. (a), (b).) Persons convicted of certain offenses

are ineligible for resentencing. (Id., subd. (i).) An eligible

petitioner shall have his or her sentence recalled and be

resentenced to a misdemeanor, “unless the court, in its

discretion, determines that resentencing the petitioner would

pose an unreasonable risk of danger to public safety.” (Id., subd.

(b).) Through a separate procedure, a person who already has

completed his or her sentence for a qualifying felony also may

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have the underlying conviction redesignated as a misdemeanor.

(Id., subds. (f)-(h).)

Section 1170.18 further provides that “[a] felony

conviction that is recalled and resentenced . . . or designated as

a misdemeanor . . . shall be considered a misdemeanor for all

purposes, except that resentencing shall not permit that person

to own, possess, or have in his or her custody or control a firearm

or prevent his or her conviction under [various statutes

prohibiting possession of a firearm under certain

circumstances].” (§ 1170.18, subd. (k).) An uncodified provision

of the measure provides that Proposition 47 “shall be liberally

construed to effectuate its purposes.” (Voter Information Guide,

Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18, p. 74; see also id.,

§ 15, p. 74 [providing that the initiative “shall be broadly

construed to accomplish its purposes”].)

3. Prior Interpretation of Proposition 47

Proposition 47 has generated many interpretive issues for

this court. (See, e.g., People v. Lara (2019) 6 Cal.5th 1128;

People v. Franco (2018) 6 Cal.5th 433; In re C.B. (2018) 6 Cal.5th

118; People v. Gonzales (2018) 6 Cal.5th 44; People v. Buycks

(2018) 5 Cal.5th 857 (Buycks); People v. Martinez (2018)

4 Cal.5th 647; People v. DeHoyos (2018) 4 Cal.5th 594; People v.

Page (2017) 3 Cal.5th 1175; People v. Valencia (2017) 3 Cal.5th

347; People v. Romanowski (2017) 2 Cal.5th 903.) In construing

the initiative, “we apply the same principles that govern

statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681,

685.) As a law adopted by the voters, “their intent governs.”

(People v. Jones (1993) 5 Cal.4th 1142, 1146.) In ascertaining

that intent, “we turn first to the language of the statute, giving

the words their ordinary meaning.” (People v. Birkett (1999)

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21 Cal.4th 226, 231.) This language is interpreted in the context

of the statute as a whole, as well as the overall statutory scheme.

(Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.)

A recent decision by this court, Buycks, supra, 5 Cal.5th

857, addressed issues similar to the one presented in this case.

In Buycks, we considered the validity of three sentence

enhancements or criminal convictions after the defendants to

whom they pertained had secured the reduction of related felony

convictions to misdemeanors through the Proposition 47

petition process. One defendant, Buycks, sought (in connection

with a Proposition 47 resentencing) the dismissal of an “on-bail”

enhancement imposed under section 12022.1, subdivision (b),

which provides in relevant part that “[a]ny person arrested for

a secondary [felony] offense that was alleged to have been

committed while that person was released from custody on a

primary [felony] offense shall be subject to a penalty

enhancement . . . .” (Buycks, at pp. 872-873.) A second

defendant in Buycks, Laura Valenzuela, pursued similar relief

on direct appeal for a one-year term enhancement imposed

under section 667.5, subdivision (b), applicable “for each prior

separate prison term or county jail term imposed under

subdivision (h) of Section 1170 or when the sentence is not

suspended for any felony.” (Buycks, at pp. 873-874.) This

enhancement, which derived from an earlier conviction for

receiving stolen property (§ 496), was imposed in a case in which

Valenzuela had been convicted of several other felonies,

including one (a violation of Health & Saf. Code § 11377) that

was among the narcotics crimes reclassified as misdemeanors

by Proposition 47, and which Valenzuela had successfully

petitioned to have reclassified as a misdemeanor. (Buycks, at

pp. 873-874.) The third defendant, Guiomar, had failed to

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appear in court on a felony charge of possessing a controlled

substance (Health & Saf. Code, § 11350), leading to another

criminal charge. (Buycks, at pp. 874-875.) The statute under

which Guiomar was charged with failing to appear provides,

“Every person who is charged with or convicted of the

commission of a felony, who is released from custody on bail, and

who in order to evade the process of the court willfully fails to

appear as required, is guilty of a felony.” (Pen. Code, § 1320.5.)

Guiomar later had his felony drug conviction reduced to a

misdemeanor through the Proposition 47 petition process, and

on that basis sought to have his conviction for failing to appear

set aside. (Buycks, at p. 875.)

In Buycks, supra, 5 Cal.5th at page 883, we concluded that

Proposition 47’s directive that a resentenced or redesignated

offense “shall be considered a misdemeanor for all purposes”

(§ 1170.18, subd. (k)) applied both prospectively and in cases in

which the judgment was not yet final at the time the initiative

was approved by the electorate. The latter determination

involved application of the limited retroactivity rule we

articulated in In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).

(Buycks, at p. 883.) Through application of this rule, a

defendant who successfully invokes the Proposition 47

resentencing process may secure the dismissal or other

appropriate treatment of an enhancement or crime subsumed

within a judgment that was not yet final on November 5, 2014

(the effective date of Prop. 47), when that allegation is premised

on the existence of a felony conviction that has been reduced to

a misdemeanor. (See Buycks, at pp. 889-891.)

We also determined in Buycks, supra, 5 Cal.5th 857, that

the “full resentencing rule” (id., at p. 893) applies to defendants

who qualify for resentencing under the initiative (id., at pp. 893-

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895). As more commonly applied, the full resentencing rule

allows a court to revisit all prior sentencing decisions when

resentencing a defendant. (Id., at p. 893; People v. Navarro

(2007) 40 Cal.4th 668, 681 [noting that the rule allows the trial

court to “exercise its sentencing discretion in light of . . .

changed circumstances”].) For example, when a felony

conviction supplying a principal sentence term is reversed on

appeal and the case returns to the trial court for resentencing,

that court must select another conviction, if it exists, to supply

the new principal term. (See People v. Roach (2014) 247

Cal.App.4th 178, 184-187.) A court conducting a full

resentencing also may, as appropriate, revisit sentencing

choices such as a decision to stay a sentence (see People v.

Calderon (1993) 20 Cal.App.4th 82, 87-88), to impose an upper

term instead of a middle term (see People v. Burbine (2003) 106

Cal.App.4th 1250, 1256-1259), or to impose concurrent instead

of consecutive sentences (see People v. Cortez (2016) 3

Cal.App.5th 308, 311-317).

In Buycks, supra, 5 Cal.5th 857, we determined that in a

Proposition 47 resentencing conducted under section 1170.18,

subdivisions (a) and (b), the trial court, “when it resentences on

the eligible felony conviction, must also resentence the

defendant generally and must therefore reevaluate the continued

applicability of any enhancement based on a prior felony

conviction.” (Buycks, at p. 894, italics added; cf. People v.

Sifuentes (2011) 195 Cal.App.4th 1410, 1419-1420, disapproved

on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304,

fn. 6.) In other words, in a Proposition 47 resentencing, the trial

court not only must revisit its prior sentencing decisions; it also

must decide whether the factual basis for an enhancement has

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been abrogated by the redesignation of a felony conviction as a

misdemeanor. (See Buycks, at pp. 893-895.)

Applying these principles, we concluded in Buycks, supra,

5 Cal.5th 857 that Buycks and Laura Valenzuela — but not

Guiomar — were entitled to relief. (Id., at pp. 896-897.)

Relevant to Buycks, whose judgment of conviction had already

become final at the time Proposition 47 came into effect, we

observed that imposition of the on-bail enhancement under

section 12022.1, subdivision (b) requires convictions for two

felonies: the felony offense for which the defendant was on bail

or released on his or her own recognizance (i.e., the primary

offense) as well as the felony offense committed while the

defendant was free on bail or his or her own recognizance (the

secondary offense). (Buycks, at p. 890; but cf. In re Jovan B.

(1993) 6 Cal.4th 801, 814 [regarding the enhancement as

applicable in juvenile wardship proceedings, even though

juvenile adjudications are not “ ‘convictions’ ”].) Reduction of

Buycks’s primary felony conviction to a misdemeanor through

Proposition 47 therefore negated a necessary premise for the on-

bail enhancement. This development meant that in a full

resentencing, no sentence associated with the allegation could

properly be imposed upon him. (Buycks, at pp. 890-891, 893-

895.)

A somewhat similar analysis applied to Laura Valenzuela

in Buycks, supra, 5 Cal.5th 857. We observed there that

although the enhancement under section 667.5, subdivision (b)

does not expressly demand a felony conviction, its terms imply

that such a conviction is necessary for the enhancement to

attach. (Buycks, at p. 889.) Therefore, we determined that “the

resentencing of [Valenzuela’s] prior underlying felony conviction

to a misdemeanor conviction negates an element required to

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support [the] section 667.5 one-year enhancement.” (Ibid.)

Unlike the judgment affecting Buycks, the judgment involving

Valenzuela’s narcotics offense and related enhancement was not

yet final when Proposition 47 came into effect. (Buycks, at

pp. 893-894.) This difference in timing meant that the limited

retroactivity principle of Estrada, supra, 63 Cal.2d 740 inured

to Valenzuela’s benefit; she did not have to rely exclusively on

the full resentencing rule in pursuing relief. (Buycks, at pp. 894-

895, 896.)

We concluded that the third defendant, Guiomar, was not

entitled to dismissal of his conviction for failing to appear.

(Buycks, supra, 5 Cal.5th at pp. 891-892, 896-897.) Although

Guiomar had successfully petitioned for reduction of his drug-

offense conviction to a misdemeanor, this did not alter the fact

that he had failed to appear on a felony charge. (Id., at p. 892.)

We emphasized that liability under section 1320.5 does not

depend on the defendant having been convicted on the charge

for which he or she had failed to appear. To the contrary, “the

primary purpose of section 1320.5 is to deter the act of jumping

bail and [the statute] requires punishment ‘whether or not the

defendant ultimately is convicted of the charge for which he or

she was out on bail when failing to appear in court as ordered.’ ”

(Buycks, at p. 891, quoting People v. Walker (2002) 29 Cal.4th

577, 583.) Hence, reduction of Guiomar’s felony narcotics

conviction to a misdemeanor through Proposition 47

resentencing did not remove any element of the failure to appear

conviction that he sought to have dismissed.4

4

A broad analogy might be drawn to a defendant who

escapes while incarcerated for a crime later found to be

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B. Defendant Is Entitled To Dismissal of His Street

Terrorism Conviction in a Full Resentencing

There is no dispute that, in accordance with section

1170.18, subdivision (a), the resentencing court appropriately

reclassified defendant’s grand theft conviction (§ 487, subd. (c))

as misdemeanor petty theft. Nor is there any question that

defendant was entitled to be resentenced consistently with that

redesignation. The issue before us is whether, in light of this

adjustment, defendant’s conviction for street terrorism can still

stand. We conclude that it cannot.

As previously described, an essential element of the street

terrorism offense is that the defendant must have “promote[d],

further[ed], or assist[ed] in any felonious criminal conduct” by

gang members. (§ 186.22, subd. (a).) This element “requir[es]

the promotion or furtherance of specific conduct of gang

members” (Rodriguez, supra, 55 Cal.4th at p. 1137 (lead opn. of

Corrigan, J.)), and the conduct involved must constitute a felony

— as opposed to a misdemeanor, or no crime at all (Lamas,

supra, 42 Cal.4th at p. 524). Consistent with these

interpretations of the statute, the jury instruction for the street

terrorism offense requires the finder of fact to determine, as an

element of the crime, that a specific felony was in fact committed

by gang members. (CALCRIM No. 1400.)

In this case, there is no dispute that the theft of Ramirez’s

$200 bicycle — the same conduct that gave rise to defendant’s

conviction for grand theft — constituted the felonious criminal

unconstitutional. We made clear in Estrada, supra, 63 Cal.2d

740 that the subsequent invalidation of the underlying offense

would not bar such a defendant from being convicted for escape.

(Id., at p. 750.)

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conduct involved with his conviction for street terrorism. In

light of defendant’s Proposition 47 resentencing, that theft can

no longer be regarded as felonious. (§§ 490.2, 1170.18, subd. (b).)

The People do not explain how defendant’s underlying conduct

could be regarded as felonious under a different theory, at least

in a way not already rejected by the jury (which declined to

convict defendant of robbery). The reduction of defendant’s

felony grand theft conviction to a misdemeanor therefore

established the absence of an essential element of the street

terrorism crime. (See Buycks, supra, 5 Cal.5th at pp. 889-890.)

It follows that the street terrorism charge should have been

dismissed at defendant’s full resentencing. (See id., at pp. 888

[determining that, except for firearm possession offenses

expressly excluded under § 1170.18, subd. (k), Prop. 47’s

“mandate to reduce penalties for a distinct class of narcotics and

larceny-related offenses otherwise fully extends to

enhancements and subsequent offenses alleged with those

offenses”], 894-895.)

The People contend that even if defendant’s conviction for

grand theft became a “misdemeanor for all purposes” upon

reclassification and resentencing (§ 1170.18, subd. (k)), this

adjustment has no effect on his conviction for street terrorism.

The People stress that a conviction for street terrorism requires

“felonious criminal conduct” (§ 186.22, subd. (a)), not necessarily

a conviction for the underlying felony.5 We do not disagree with

5

Thus, for example, a gang member who promotes,

furthers, or assists a felony committed by other gang members

might be convicted of street terrorism without also being

charged with, let alone convicted of, the offense he or she

facilitated. In such a case, however, the finder of fact still must

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the latter point, but do not regard it as decisive here. Given the

facts of this case, the reduction of defendant’s theft conviction to

a misdemeanor establishes that he cannot be regarded as

having engaged in felonious criminal conduct. This essential

element not being present, defendant cannot properly be

resentenced for the street terrorism offense.

The People further contend that the reduction of

defendant’s grand theft conviction to misdemeanor petty theft

does not alter the fact that he committed felonious criminal

conduct as it was denominated in 2013. They take the position

that the classification of defendant’s conduct at that time

controls. But neither the gravamen of the street terrorism crime

nor any indicia of legislative intent associated with it convey

that the felonious nature of the criminal conduct necessary for

commission of this offense is fixed for all time when the crime

takes place. It is more reasonable, in light of the limited

retroactivity rule of Estrada, supra, 63 Cal.2d 740, which

presumes that ameliorative changes in the criminal laws were

intended to be applied to cases with nonfinal judgments, to

conclude that the felonious character of this conduct is

susceptible to reassessment as may be appropriate in light of

pertinent developments affecting the criminal codes, so long as

the judgment is nonfinal or validly reopened.

In this respect, the felonious character of the criminal

conduct involved with street terrorism is little different from the

erstwhile felonious nature of the prior convictions involved with

the enhancements we addressed in Buycks, supra, 5 Cal.5th 857.

There, we emphasized that we were required to reassess the

determine that the defendant promoted, furthered, or assisted

the commission of a specific felony.

16

PEOPLE v. VALENZUELA

Opinion of the Court by Cantil-Sakauye, C. J.

continued applicability of these enhancements at the time of

resentencing. (Id., at p. 894.) Similarly here, the reclassification

of defendant’s conviction for grand theft as misdemeanor petty

theft pursuant to the Proposition 47 petition process imparts

that an essential element to defendant’s conviction for street

terrorism is now absent. Defendant is therefore no longer

susceptible to being resentenced for the street terrorism offense.

Lastly, the People liken the facts of this case to those

associated with defendant Guiomar in Buycks, supra, 5 Cal.5th

857, to whom we denied relief. But section 1320.5, the “failure

to appear” statute under which Guiomar was convicted, is

materially different from the street terrorism crime involved

here. A felonious failure to appear — involving a willful evasion

of the court’s process in what had been denominated, if not yet

proved to be, a felony matter — is not, as a matter of logic or

gravity, affected by the reduction of a subsequent felony

conviction in the matter in which defendant absented himself or

herself. Critically, reclassification of a felony conviction

associated with a crime for which a defendant failed to appear

does not function to negate an essential element of section

1320.5 offense. (See Buycks, at p. 891.) In this case, as

previously described, the reduction of defendant’s grand theft

conviction to misdemeanor petty theft establishes the absence of

an essential element of defendant’s conviction for street

terrorism, to wit, that defendant promoted, furthered, or

assisted specific felonious criminal conduct.

III. DISPOSITION

Given the circumstances before us, defendant cannot

properly be resentenced for the street terrorism offense.

Instead, this conviction must be dismissed in his Proposition 47

17

PEOPLE v. VALENZUELA

Opinion of the Court by Cantil-Sakauye, C. J.

resentencing.6 The judgment of the Court of Appeal is reversed.

We remand this matter for further proceedings consistent with

our opinion.

CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

6

Our determination that defendant is entitled to a full

resentencing at which the reduction of his grand theft conviction

to misdemeanor petty theft will lead to the dismissal of his

street terrorism conviction should not be read to imply a

separate, negative holding: that a different defendant, convicted

only of street terrorism before Proposition 47 came into effect,

cannot obtain relief under the initiative even though the

criminal conduct he or she promoted, furthered, or assisted is no

longer felonious. We have no occasion here to address those

circumstances, and leave for another day what remedies, if any,

are available to a defendant in that position.

18

PEOPLE v. VALENZUELA

S239122

Dissenting Opinion by Justice Corrigan

I respectfully dissent. In enacting Proposition 47, the

electorate expressed its intent to reduce punishment for

nonserious theft and drug offenses. Defendant’s crime of

participating in a criminal street gang under Penal Code1

section 186.22, subdivision (a) does not constitute a nonserious

theft offense falling within the ambit of that provision.

“Enacted in 2014, Proposition 47, known as the Safe

Neighborhoods and Schools Act . . . , ‘reduc[ed] penalties for

certain theft and drug offenses by amending existing statutes.’

[Citation.] ‘One of Proposition 47’s primary purposes is to

reduce the number of nonviolent offenders in state prisons,

thereby saving money and focusing prison on offenders

considered more serious under the terms of the initiative.’ ”

(People v. Adelmann (2018) 4 Cal.5th 1071, 1075.) The Voter

Information Guide explained that Proposition 47 “reduces

penalties for certain offenders convicted of nonserious and

nonviolent property and drug crimes. The measure also allows

certain offenders who have been previously convicted of such

crimes to apply for reduced sentences.” (Voter Information

Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis.

Analyst, p. 35, italics added.)

1

Subsequent statutory references are to the Penal Code

unless otherwise noted.

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PEOPLE v. VALENZUELA

Corrigan, J., dissenting

The resentencing statute, section 1170.18, subdivision (a),

provides: “A person who, on November 5, 2014, was serving a

sentence for a conviction, whether by trial or plea, of a felony or

felonies who would have been guilty of a misdemeanor under the

act that added this section (‘this act’) had this act been in effect

at the time of the offense may petition for a recall of sentence

before the trial court that entered the judgment of conviction in

his or her case to request resentencing in accordance with

Sections 11350, 11357, or 11377 of the Health and Safety Code,

or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code,

as those sections have been amended or added by this act.”

Defendant’s offense, street terrorism under section 186.22,

subdivision (a), is not listed in section 1170.18, subdivision (a).

Nevertheless, he argues he is entitled to resentencing “in

accordance with” section 490.2, which defines as misdemeanor

petty theft “obtaining any property by theft where the value of

the money, labor, real or personal property taken does not

exceed nine hundred fifty dollars ($950) . . . .” (§ 490.2, subd.

(a).) The majority agrees: “In this case, there is no dispute that

the theft of Ramirez’s $200 bicycle — the same conduct that gave

rise to defendant’s conviction for grand theft — constituted the

felonious criminal conduct involved with his conviction for street

terrorism. In light of defendant’s Proposition 47 resentencing,

that theft can no longer be regarded as felonious. (§§ 490.2,

1170.18, subd. (b).)” (Maj. opn., ante, at pp. 14-15.)

Although we have reasoned that offenses not listed in

section 1170.18 may be resentenced in accordance with section

490.2, we have been careful to note that such offenses are, in

fact, theft offenses. For example, People v. Page (2017) 3 Cal.5th

1175 concluded a defendant convicted under Vehicle Code

section 10851, subdivision (a), which criminalizes the unlawful

2

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

taking or driving of a vehicle, would be entitled to Proposition

47 resentencing if his conviction was based upon vehicle theft.

“[W]hile Vehicle Code section 10851 does not expressly

designate the offense as theft, the conduct it criminalizes

includes theft of a vehicle . . . . And to the extent vehicle theft is

punished as a felony under section 10851, it is, in effect, a form

of grand, rather than petty, theft.” (Page, at p. 1186.) Thus,

“obtaining an automobile worth $950 or less by theft constitutes

petty theft under section 490.2 and is punishable only as a

misdemeanor, regardless of the statutory section under which

the theft was charged.” (Id. at p. 1187.) Similarly, People v.

Romanowski (2017) 2 Cal.5th 903 concluded that theft of access

card information (Pen. Code, § 484e, subd. (d)) was subject to

resentencing under Proposition 47 because it was a form of theft:

“[W]e must presume that voters were at least aware that the

Penal Code sets out ‘grand theft’ crimes that included theft of

access card account information. (§ 484e.) The text and

structure of Proposition 47 convey that section 490.2’s clear

purpose was to reduce punishment for crimes of ‘obtaining any

property by theft’ that were previously punished as ‘grand theft’

when the stolen property was worth less than $950. And section

484e confirms that theft of access card information is one of

those crimes.” (Romanowski, at p. 909.)

The majority here equates street terrorism with a

nonserious theft offense subject to section 490.2. Section 186.22,

subdivision (a) applies to “[a]ny person who actively participates

in any criminal street gang with knowledge that its members

engage in, or have engaged in, a pattern of criminal gang

activity, and who willfully promotes, furthers, or assists in any

felonious criminal conduct by members of that gang . . . .” First,

the Penal Code specifically lists a violation of section 186.22 as

3

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

a serious felony. (§ 1192.7, subd. (c)(28).) Proposition 47 was

represented to the voters as applying only to “nonserious and

nonviolent property and drug crimes.” (Voter Information

Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst,

p. 35.) Applying its ameliorative provisions to a serious felony

would seem contrary to the electorate’s intent.

Second, a violation of section 186.22, subdivision (a) is not

a theft offense. “The gravamen of the substantive offense set

forth in section 186.22[, subdivision] (a) is active participation

in a criminal street gang.” (People v. Albillar (2010) 51 Cal.4th

47, 55.) Section 186.22, subdivision (a) “reflects the

Legislature’s carefully structured endeavor to punish active

participants for commission of criminal acts done collectively

with gang members.” (People v. Rodriguez (2012) 55 Cal.4th

1125, 1139 (lead opn. of Corrigan, J.) (Rodriguez).) Thus, unlike

vehicle theft in Page or theft of access card information in

Romanowski, street terrorism encompasses concerted criminal

conduct beyond mere theft, even if theft is part of the underlying

conduct.

On this point, two Court of Appeal cases are instructive.

People v. Martin (2018) 26 Cal.App.5th 825 (Martin) concluded

that conspiracy (§ 182, subd. (a)(1)) to commit petty theft was

not subject to Proposition 47 resentencing. Martin noted that

“[t]he courts have long recognized the enhanced dangers of a

conspiracy” (Martin, at p. 836), and reasoned the defendant’s

offense went beyond a mere theft: “The conspiracy in which

respondent was involved was not an ordinary shoplifting

scheme; it involved criminal teamwork.” (Id. at p. 839.) The

defendant conspired to “commit as many petty thefts as she

could get away with” and sell the stolen property overseas. (Id.

at p. 828.) Martin observed, “The potential harm to the public

4

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

from such a conspiracy was far greater than the harm posed by

ordinary shoplifting.” (Id. at p. 839.) Accordingly, the Court of

Appeal reversed her resentencing under Proposition 47. (See

also People v. Segura (2015) 239 Cal.App.4th 1282, 1284.)

Similarly, People v. Soto (2018) 23 Cal.App.5th 813

concluded Proposition 47 did not ameliorate a felony conviction

for theft from an elder (§ 368, subd. (d)). Soto observed that

neither Page nor Romanowski “had occasion to consider

Proposition 47 eligibility for what we will call a pure ‘theft-plus’

offense, i.e., one that is not identified as grand theft and requires

additional necessary elements beyond the theft itself. Nothing

in Romanowski or Page suggests that section 490.2 extends to

any course of conduct that happens to include obtaining

property by theft worth less than $950.” (Soto, at p. 822.) Soto

reasoned a contrary conclusion would lead to absurd results,

noting that theft was an included offense of robbery (§ 211), a

violent felony (§ 667.5, subd. (c)(9)), and “[a] robber might take

property by larceny worth less than $950” (Soto, at p. 822). “An

overexpansive reading of Romanowski and Page might construe

that ‘theft-plus’ offense as petty theft under section 490.2. Such

a construction would thwart Proposition 47’s objective to reduce

sentences for nonviolent crimes while shifting spending toward

more serious offenses.” (Id. at pp. 822-823.) Soto concluded:

“Soto was charged with an aggravated form of theft—theft from

an elder victim. We see no way to interpret section 490.2 to

cover Soto’s conviction without converting every ‘theft-plus’

offense involving less than $950 into petty theft.” (Id. at p. 824,

fn. omitted.)

The reasoning of Martin and Soto applies here.

Defendant’s street terrorism offense went beyond the mere

commission of theft. The jury necessarily found that defendant

5

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

acted with a fellow gang member and committed their offense to

promote their gang. Just as a conspiracy to commit theft poses

a danger to society beyond the underlying theft, defendant’s

active gang participation likewise posed a danger to society

beyond the underlying theft. As Soto reasoned, nothing in

Proposition 47 suggested an electoral intent to reduce to a

misdemeanor any and all felonies that may include some aspect

of theft.

In passing the California Street Terrorism Enforcement

and Prevention Act (§ 186.20 et seq.), the Legislature declared

“that the State of California is in a state of crisis which has been

caused by violent street gangs whose members threaten,

terrorize, and commit a multitude of crimes against the peaceful

citizens of their neighborhoods. These activities, both

individually and collectively, present a clear and present danger

to public order and safety and are not constitutionally

protected.” (§ 186.21.) The majority’s treatment of defendant’s

street terrorism offense as nothing but a form of theft is at odds

with the important purposes behind both section 186.22,

“enacted in 1988 to combat a dramatic increase in gang-related

crimes and violence” (People v. Prunty (2015) 62 Cal.4th 59, 67),

and with Proposition 47, which was enacted to grant relief to

those convicted of nonserious theft and drug offenses.

The majority’s reliance on the so-called “ ‘full resentencing

rule’ ” of People v. Buycks (2018) 5 Cal.5th 857 (Buycks) is

misplaced. (Id. at p. 893.) As articulated in In re Estrada (1965)

63 Cal.2d 740, unless otherwise indicated, an “ ‘amendatory

statute lessening punishment is presumed to apply in all cases

not yet reduced to final judgment as of the amendatory statute’s

effective date.’ ” (People v. DeHoyos (2018) 4 Cal.5th 594, 600;

see In re Estrada, at p. 744.) We applied this rule in Buycks to

6

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

two enhancements for having served a prior prison term (§

667.5, subd. (b)) and committing an offense while released on

bail or his own recognizance (§ 12022.1), both of which required

underlying felony convictions. (See Buycks, at pp. 889-891.)

Buycks reasoned that, once those underlying felony convictions

were resentenced to misdemeanors under Proposition 47,

section 1170.18, subdivision (k), which states that “[a] felony

conviction that is recalled and resentenced under subdivision

(b) . . . shall be considered a misdemeanor for all purposes,”

applied: “Therefore, at the time of resentencing of a Proposition

47 eligible felony conviction, the trial court must reevaluate the

applicability of any enhancement within the same judgment at

that time, so long as that enhancement was predicated on a

felony conviction now reduced to a misdemeanor. Such an

enhancement cannot be imposed because at that point the

reduced conviction ‘shall be considered a misdemeanor for all

purposes.’ (§ 1170.18, subd. (k).)” (Buycks, at pp. 894-895.)

It is unclear from the majority opinion what specific

statutory amendment is being given retroactive effect within the

meaning of Estrada and Buycks under the full resentencing

rule. The majority states, “The reduction of defendant’s felony

grand theft conviction to a misdemeanor therefore established

the absence of an essential element of the street terrorism

crime” (maj opn., ante, at p. 15), suggesting it is applying section

1170.18, subdivision (k). Indeed, the majority cites Buycks’s

application of that provision. (Maj. opn., ante, at p. 15; see also

ibid. [“In light of defendant’s Proposition 47 resentencing, that

theft can no longer be regarded as felonious”].) However, the

enhancements in Buycks required underlying felony convictions

in order to be imposed, and the Proposition 47 reduction of those

felonies to misdemeanors took away a necessary component of

7

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

the enhancements. (Buycks, supra, 5 Cal.5th at pp. 888-891.)

By contrast, as the majority acknowledges, a street terrorism

conviction under section 186.22, subdivision (a) does not require

a conviction of any other felony offense. (See maj. opn., ante, at

pp. 15-16, fn. 5.) As such, the fact that a felony conviction

unnecessary to the street terrorism conviction was reduced to a

misdemeanor should have no bearing on the continued validity

of defendant’s section 186.22, subdivision (a) conviction. Buycks

is thus distinguishable.

The majority’s application of the full resentencing rule

here essentially sanctions an end run around the Proposition 47

resentencing scheme. As described ante, defendant cannot

establish entitlement to relief under the resentencing procedure

of section 1170.18, subdivision (a). Buycks recognized

alternative procedures for relief “because Proposition 47 does

not provide a specific mechanism for recalling and resentencing

a judgment solely because a felony-based enhancement has been

collaterally affected by the reduction of a conviction to a

misdemeanor in a separate judgment . . . .” (Buycks, supra, 5

Cal.5th at p. 892.) It is one thing to recognize such a procedure

in Buycks, where reduction of a felony to a misdemeanor under

Proposition 47 eliminated the felony convictions required for the

enhancements there, thus implementing the electoral intent

manifested in section 1170.18, subdivision (k). It is quite

another to apply such a procedure here. The majority

contemplates the trial court will strike entirely the street

terrorism conviction, even though that offense was nowhere

mentioned in Proposition 47 and section 186.22 was not

amended by the act, due to the happenstance that defendant

was also concurrently convicted of grand theft, a conviction not

required for a street terrorism conviction, and that theft

8

PEOPLE v. VALENZUELA

Corrigan, J., dissenting

conviction was later reduced to a misdemeanor. Indeed, the only

difference between this case and Martin is that Martin did not

have the good fortune to be convicted of theft in addition to

conspiracy to commit theft.2 Nothing in the language of

Proposition 47 suggests the electorate contemplated such a

random and haphazard scheme.

We are, of course, bound by the voters’ lawful enactments,

and properly so. But we are bound to enforce those enactments

in accordance with the voters’ lawful intent. As Justice Yegan

observed in Martin, “The fabric of the law will stretch only so far

before it will unravel.” (Martin, supra, 26 Cal.App.5th at p.

828.) To conclude that, in providing more lenient treatment for

those convicted of nonviolent theft offenses, the voters intended

to reduce culpability for those guilty of the separate, serious

felony of street terrorism stretches credulity, and the fabric of

the law, too far. I would affirm the Court of Appeal’s judgment

affirming the trial court’s denial of resentencing under

Proposition 47.

CORRIGAN, J.

2

Martin was convicted of shoplifting (§ 459.5) for an

incident unrelated to the charged conspiracy. (See Martin,

supra, 26 Cal.App.5th at p. 829.)

9

PEOPLE v. VALENZUELA

S239122

Dissenting Opinion by Justice Kruger

In 2013, in an apparent gang-related incident, defendant

Luis Donicio Valenzuela took a bicycle worth around $200

dollars from another young man. He was convicted of two

felonies: grand theft from the person (Pen. Code, § 487, subd.

(c)) and active participation in a street gang (id., § 186.22, subd.

(a)). The latter offense applies to a person who actively

participates in a criminal street gang with knowledge of the

gang’s pattern of criminal activity, and who “willfully promotes,

furthers, or assists in any felonious criminal conduct by

members of that gang.” (Ibid.)

In 2014, while these convictions were on appeal, voters

passed Proposition 47, which reclassified many drug possession

and theft offense felonies as misdemeanors. Among the

measure’s new provisions was Penal Code section 490.2, which

generally reduced felony punishment for theft of property worth

$950 or less to the misdemeanor level. (Id., subd. (a).) Invoking

this provision, defendant successfully petitioned the superior

court to reduce his grand theft conviction to a misdemeanor.

(Pen. Code, § 1170.18, subds. (a), (b), as added by Prop. 47, § 14,

approved by voters, Gen. Elec. (Nov. 4, 2014).) He now argues

that the superior court should also have dismissed his felony

gang participation conviction altogether. He reasons that once

the grand theft conviction was reduced to a misdemeanor, grand

theft could no longer be used to satisfy the “felonious criminal

1

PEOPLE v. VALENZUELA

Kruger, J., dissenting

conduct” element of the gang participation crime under Penal

Code section 186.22, subdivision (a).

The Court of Appeal rejected this argument. It explained

that because liability under Penal Code section 186.22,

subdivision (a) does not depend on having sustained any

underlying felony conviction, the fact that defendant’s grand

theft conviction was later reduced to a misdemeanor had no

bearing on the continued validity of defendant’s gang

participation conviction. (People v. Valenzuela (2016)

5 Cal.App.5th 449, 452–453, review granted Mar. 1, 2017,

S239122.)

The majority now reverses, reasoning that the

resentencing court’s reduction of defendant’s theft conviction to

a misdemeanor “established the absence of an essential element

of the street terrorism offense—felonious criminal conduct.”

(Maj. opn., ante, at p. 2.) “In light of defendant’s Proposition 47

resentencing,” defendant’s theft of the bicycle “can no longer be

regarded as felonious” (maj. opn., ante, at p. 15); put another

way, “the reduction of defendant’s theft conviction to a

misdemeanor establishes that he cannot be regarded as having

engaged in felonious criminal conduct” (id. at p. 16) as required

for a conviction under Penal Code section 186.22, subdivision

(a).

Much as I sympathize with the majority’s efforts to give

appropriate effect to Proposition 47’s ameliorative purposes, I

cannot join in this reasoning. As the Court of Appeal rightly

noted, the argument conflates the grand theft conviction with

the conduct underlying it. Defendant’s gang participation

conviction did not depend on the existence of a separate

conviction for grand theft (or any other felony, for that matter);

2

PEOPLE v. VALENZUELA

Kruger, J., dissenting

it depended only on his having committed or assisted in

felonious conduct to promote the activities of a criminal street

gang. It follows that the reduction of defendant’s grand theft

conviction does not entitle defendant to dismissal of his gang

participation conviction.

This case is not like People v. Buycks (2018) 5 Cal.5th 857,

871. In Buycks, we held that reduction of a felony conviction to

a misdemeanor under Proposition 47 invalidated sentence

enhancements based on the prior felony conviction because

under Penal Code section 1170.18, subdivision (k), the reduced

conviction “shall be considered a misdemeanor for all purposes.”

There, the validity of each of the enhancements at issue

depended on the existence of a felony conviction, not simply the

commission of felonious conduct. (See Buycks, at pp. 888–890

[enhancement under Pen. Code, § 667.5, subd. (b)], 890–891

[enhancement under Pen. Code, § 12022.1].) In contrast, the

gang participation offense defined in Penal Code section 186.22,

subdivision (a), does not refer—even implicitly—to a predicate

prior felony conviction. It instead applies to a gang participant

who has assisted other gang members in felonious conduct. The

majority opinion does not explain how the reduction of

defendant’s grand theft conviction to a misdemeanor could

possibly have altered the nature of the conduct underlying the

gang participation offense.

The majority opinion does gesture to a possible alternative

rationale for reaching the same conclusion: that setting aside

the fate of defendant’s separate theft conviction, Proposition 47

itself retroactively operated on Penal Code section 186.22,

subdivision (a), to preclude reliance on conduct involving theft

of property worth less than $950. Although the majority opinion

does not clearly say so, this is an entirely different argument for

3

PEOPLE v. VALENZUELA

Kruger, J., dissenting

granting relief. It does not depend in any way on the

reclassification of defendant’s grand theft conviction; it depends,

rather, on our usual presumption that legislation lessening

punishment is intended to apply retroactively to all cases that

have not yet become final on appeal. (In re Estrada (1965) 63

Cal.2d 740, 745.) The majority touches on this argument when

it reasons that because defendant’s gang participation

conviction was not yet final when Proposition 47 took effect, “the

limited retroactivity rule of Estrada, supra, 63 Cal.2d 740,

which presumes that ameliorative changes in the criminal laws

were intended to be applied to cases with nonfinal judgments,”

makes the underlying conduct “susceptible to reassessment”

under the measure’s new provisions. (Maj. opn., ante, at p. 16.)

There are, however, several difficulties with relying on

this argument here, beginning with the fact it has not been

properly presented to us. Defendant never made the Estrada

argument in the Court of Appeal, and that court did not address

it. Nor did defendant rely on Estrada in his briefing in this

court. Even when we specifically asked the parties to brief that

decision’s significance, defendant affirmatively disclaimed

reliance on this theory, conceding that he was not entitled to

retroactive relief under Estrada. Counsel partly withdrew that

concession in a letter submitted to the court before oral

argument, but he still did not invoke Estrada as a standalone

basis for relief; his arguments have instead relied on some

amalgam of Estrada and his original, and incorrect, theory that

4

PEOPLE v. VALENZUELA

Kruger, J., dissenting

the reduction of his grand theft conviction necessarily implies

the invalidity of his gang participation conviction.1

As a consequence, neither the parties nor the courts have

ever grappled with the implications of adopting a rule that

would regard Proposition 47 as retroactively invalidating

convictions for offenses that, like Penal Code section 186.22,

subdivision (a), depend in some way on a showing that the

defendant committed conduct punishable as a felony. The first,

threshold question is whether this theory can be squared with

People v. DeHoyos (2018) 4 Cal.5th 594, 600–603, in which we

held that defendants who were serving felony sentences on

Proposition 47’s effective date—and who therefore could seek

resentencing under Penal Code section 1170.18—could not

instead claim the direct benefit of retroactive amelioration

under Estrada.

Even if we were to answer that question in the affirmative,

we would then have to confront an arguably anomalous

consequence of the theory. Proposition 47 was designed to

reduce certain felonies to misdemeanors. But retroactive

application of Proposition 47 in this context could instead result

in a defendant being relieved of all criminal liability for his or

1

Defendant did brief and argue an alternative theory for

relief independent of Penal Code section 1170.18, subdivision

(k): that defendant was entitled to resentencing under

subdivision (a) of the statute. But that theory relied not on

Estrada but on People v. Page (2017) 3 Cal.5th 1175 and People

v. Romanowski (2017) 2 Cal.5th 903. The theory fails for

reasons given in Justice Corrigan’s dissent: Unlike the crimes

involved in Page and Romanowski, the gang participation

offense in Penal Code section 186.22, subdivision (a), neither is

a grand theft offense nor has grand theft as one of its statutory

variants.

5

PEOPLE v. VALENZUELA

Kruger, J., dissenting

her formerly felonious conduct. In this case, of course,

defendant was convicted of grand theft as well as gang

participation, and that theft conviction has now been reduced to

a misdemeanor. Dismissing or vacating defendant’s gang

participation conviction, as this court’s disposition directs, will

leave him with a misdemeanor conviction for his theft, just as a

person who committed the same conduct after Proposition 47

would face prosecution for misdemeanor theft. But a defendant

who, by contrast, had been charged with and convicted only of

gang participation under Penal Code section 186.22, subdivision

(a), would, under the Estrada theory, be retroactively relieved of

all liability. This is a result that the voters who approved

Proposition 47 did not likely anticipate.

Whether that consequence is one that should preclude

retroactive relief is a significant question. But it is a question

that is not properly before us, and it is therefore not one we can

or should answer here.

On the only question properly presented to us, I think the

Court of Appeal got it right: The reduction of defendant’s grand

theft conviction to a misdemeanor did not retroactively

invalidate defendant’s separate conviction for gang

participation. In the absence of briefing and argument to

support any other viable theory of relief, I would affirm the

judgment of the Court of Appeal.

KRUGER, J.

I Concur:

CORRIGAN, J.

6

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Valenzuela

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 5 Cal.App.5th 449

Rehearing Granted

__________________________________________________________________________________

Opinion No. S239122

Date Filed: June 3, 2019

__________________________________________________________________________________

Court: Superior

County: Ventura

Judge: Nancy L. Ayers

__________________________________________________________________________________

Counsel:

Stephen P. Lipson and Todd W. Howeth, Public Defenders, Michael C. McMahon, Chief Deputy Public

Defender, and William Quest, Deputy Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney

General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Louis W. Karlin, Susan

Sullivan Pithey, Mary Sanchez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

William Quest

Deputy Public Defender

Hall of Justice

800 South Victoria Avenue, Room 207

Ventura, CA 93009

(805) 654-3032

Wyatt E. Bloomfield

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6145