People v. Rojas

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO ROJAS,

Defendant and Appellant.

S275835

Fifth Appellate District

F080361

Kern County Superior Court

BF171239B

December 18, 2023

Justice Liu authored the opinion of the Court, in which Chief

Justice Guerrero and Justices Corrigan, Kruger, Groban,

Jenkins, and Evans concurred.

PEOPLE v. ROJAS

S275835

Opinion of the Court by Liu, J.

In 2000, California voters adopted Proposition 21, the

Gang Violence and Juvenile Crime Prevention Act of 1998

(Proposition 21). Proposition 21 added the gang-murder special

circumstance, codified at Penal Code section 190.2, subdivision

(a)(22) (section 190.2(a)(22)). (All undesignated statutory

references are to the Penal Code.) Under this provision, a

person convicted of first degree murder is subject to the death

penalty or life imprisonment without the possibility of parole if

the jury finds “[t]he 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(a)(22), italics added.)

Proposition 21 does not permit amendment of its provisions

except by the voters or by legislative amendment passed with a

two-thirds majority of each house. (Voter Information Guide,

Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 39, p. 131.)

The definition of a “criminal street gang” in section 186.22,

subdivision (f) (section 186.22(f)) was first enacted in 1988 as

part of the California Street Terrorism Enforcement and

Prevention Act (STEP Act) (§ 186.20 et seq.), which created the

offense of active participation in a gang and introduced

sentencing enhancements for gang-related felonies. (Stats.

1988, ch. 1256, § 1, p. 4179; see Pen. Code, § 186.22, subds. (a),

(b)(2).) The Legislature has amended the definition of “criminal

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Opinion of the Court by Liu, J.

street gang” a few times over the years, generally expanding its

scope. But in 2021, the Legislature substantially narrowed

section 186.22(f)’s definition of “criminal street gang” and, by

extension, what it means to “further the activities of the

criminal street gang” for purposes of the special circumstance in

section 190.2(a)(22). (See Assembly Bill No. 333 (2021–2022

Reg. Sess.) (Assembly Bill 333).)

The issue before us is whether applying this recent

legislative enactment, Assembly Bill 333, to the gang-murder

special circumstance in section 190.2(a)(22) constitutes an

unlawful amendment of Proposition 21. The issue has divided

the Courts of Appeal. (Compare People v. Rojas (2022) 80

Cal.App.5th 542, 557 [Assembly Bill 333’s amendments to

§ 186.22 cannot be applied to the gang-murder special

circumstance without taking away from the scope of conduct

made punishable under Proposition 21] with People v. Lee (2022)

81 Cal.App.5th 232, 245, review granted and briefing deferred

Oct. 19, 2022, S275449 (Lee) [Assembly Bill 333 did not amend

Proposition 21, which was intended to track any subsequent

changes to § 186.22] and People v. Oliva (2023) 89 Cal.App.5th

76, 90, review granted and briefing deferred May 17, 2023,

S279485 [same].) We hold that the application of Assembly Bill

333 to the gang-murder special circumstance does not violate

the limitation on legislative amendment in Proposition 21.

I.

In 2019, Fernando Rojas and his codefendant Victor

Nunez were found guilty of deliberate, premeditated murder

(§ 187, subd. (a)) with true findings on the gang-murder special

circumstance (§ 190.2(a)(22)), a gang enhancement (§ 186.22,

subd. (b)(1)), and various firearm allegations (§§ 12022,

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subd. (d), 12022.53, subds. (d) & (e)). Nunez, a fellow gang

member, “shot and killed an individual with whom [Rojas] had

an altercation moments prior.” (Rojas, supra, 80 Cal.App.5th at

p. 546.) Rojas and Nunez were also found guilty of active

participation in a criminal street gang. (§ 186.22, subd. (a).)

Based on the special circumstance finding, the trial court

sentenced Rojas to life imprisonment without the possibility of

parole, plus 25 years to life for the firearm enhancement.

In 2021, while Rojas’s appeal was pending, the Legislature

passed Assembly Bill 333, enacting the STEP Forward Act of

2021. (Stats. 2021, ch. 699, § 1.) “Assembly Bill 333 made the

following changes to the law on gang enhancements: First, it

narrowed the definition of a ‘criminal street gang’ to require that

any gang be an ‘ongoing, organized association or group of three

or more persons.’ (§ 186.22, subd. (f), italics added.) Second,

whereas section 186.22, former subdivision (f) required only

that a gang’s members ‘individually or collectively engage in’ a

pattern of criminal activity in order to constitute a ‘criminal

street gang,’ Assembly Bill 333 requires that any such pattern

have been ‘collectively engage[d] in’ by members of the gang.

(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also

narrowed the definition of a ‘pattern of criminal activity’ by

requiring that (1) the last offense used to show a pattern of

criminal gang activity occurred within three years of the date

that the currently charged offense is alleged to have been

committed; (2) the offenses were committed by two or more gang

‘members,’ as opposed to just ‘persons’; (3) the offenses

commonly benefitted a criminal street gang; and (4) the offenses

establishing a pattern of gang activity must be ones other than

the currently charged offense. (§ 186.22, subd. (e)(1), (2).)

Fourth, Assembly Bill 333 narrowed what it means for an

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Opinion of the Court by Liu, J.

offense to have commonly benefitted a street gang, requiring

that any ‘common benefit’ be ‘more than reputational.’

(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169,

1206 (Tran); see People v. Cooper (2023) 14 Cal.5th 735, 738

[same].)

In Tran, we held that Assembly Bill 333’s amendments to

section 186.22 apply retroactively to cases pending on appeal

under the rule of In re Estrada (1965) 63 Cal.2d 740. (Tran,

supra, 13 Cal.5th at pp. 1206–1207.) In light of Tran, the

Attorney General conceded below that Assembly Bill 333 applies

here and that because a reasonable jury could conclude that the

common benefit of the murder was based only on reputational

evidence, all the gang-based findings must be vacated, except for

the gang-murder special circumstance. (Rojas, supra, 80

Cal.App.5th at p. 546.) Accepting this concession, the Court of

Appeal reversed the gang enhancement and vicarious firearm

findings on Rojas’s murder conviction and his conviction of

active gang participation. (Ibid.) But the court also agreed with

the Attorney General that Assembly Bill 333 could not be

applied to the gang-murder special circumstance. (Rojas, at

pp. 550–558.)

The Court of Appeal reasoned that Assembly Bill 333, as

applied to the gang-murder special circumstance, is

unconstitutional because it would “ ‘take[] away’ from the scope

of conduct that Proposition 21 made punishable under section

190.2” and was not passed by a supermajority vote. (Rojas,

supra, 80 Cal.App.5th at p. 555.) The court further explained

that Proposition 21’s increase in the punishment for certain

gang-related murders was “definitionally and conceptually

inseparable” from the gang conduct defined in section 186.22.

(Rojas, at p. 556.) Therefore, applying Assembly Bill 333’s

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revised definition of a criminal street gang to the gang-murder

special circumstance would be unconstitutional, even though

Assembly Bill 333 did not reduce the penalty established by

Proposition 21’s gang-murder special circumstance. (Rojas, at

p. 556.) The court concluded that “[t]he appropriate remedy is

not to void Assembly Bill 333 in its entirety, but rather to

disallow this unconstitutional application of Assembly Bill 333.”

(Id. at p. 557.)

Justice Snauffer dissented on this issue, observing that

the voters who passed Proposition 21 were concerned only with

“increasing the punishment for certain gang-related murders,”

not with the underlying definition of any crime. (Rojas, supra,

80 Cal.App.5th at p. 561 (conc. & dis. opn. of Snauffer, J.).) In

his view, Proposition 21’s voters “ ‘got, and still have, precisely

what they enacted — stronger sentences for persons convicted

of [gang-related special-circumstance] murder.’ ” (Rojas, at

p. 560, quoting People v. Superior Court (Gooden) 42

Cal.App.5th 270, 289 (Gooden).)

We granted review to decide whether Assembly Bill 333’s

application to the gang-murder special circumstance

unconstitutionally amends Proposition 21.

II.

“The Legislature may not amend an initiative statute

without subsequent voter approval unless the initiative permits

such amendment, ‘and then only upon whatever conditions the

voters attached to the Legislature’s amendatory

powers.’ ” (People v. Superior Court (Pearson) (2010) 48 Cal.4th

564, 568 (Pearson); see Cal. Const., art. II, § 10, subd. (c).) “The

purpose of California’s constitutional limitation on the

Legislature’s power to amend initiative statutes is to ‘protect the

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people’s initiative powers by precluding the Legislature from

undoing what the people have done, without the electorate’s

consent.’ ” (Proposition 103 Enforcement Project v.

Quackenbush (1998) 64 Cal.App.4th 1473, 1484.)

“We have described an amendment as ‘a legislative act

designed to change an existing initiative statute by adding or

taking from it some particular provision.’ [Citation.] But this

does not mean that any legislation that concerns the same

subject matter as an initiative, or even augments an initiative’s

provisions, is necessarily an amendment for these purposes.

‘The Legislature remains free to address a “ ‘related but distinct

area’ ” [citations] or a matter that an initiative measure “does

not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48

Cal.4th at p. 571.)

“When we interpret an initiative, we apply the same

principles governing statutory construction. We first consider

the initiative’s language, giving the words their ordinary

meaning and construing this language in the context of the

statute and initiative as a whole. If the language is not

ambiguous, we presume the voters intended the meaning

apparent from that language, and we may not add to the statute

or rewrite it to conform to some assumed intent not apparent

from that language. If the language is ambiguous, courts may

consider ballot summaries and arguments in determining the

voters’ intent and understanding of a ballot measure.” (Pearson,

supra, 48 Cal.4th at p. 571.)

A.

California voters enacted Proposition 21 in 2000,

increasing the penalties for certain gang-related felonies. As

relevant here, Proposition 21 created the gang-murder special

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circumstance, codified at section 190.2(a)(22). (People v.

Shabazz (2006) 38 Cal.4th 55, 65.) Section 190.2(a)(22)

provides: “The penalty for a defendant who is found guilty of

murder in the first degree is death or imprisonment in the state

prison for life without the possibility of parole if one or more of

the following special circumstances has been found under

Section 190.4 to be true: [¶] . . . [¶] (22) 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.” By its terms,

Proposition 21 established a new penalty for murder committed

by an active participant in a criminal street gang in furtherance

of the gang’s activities, while relying on an existing statutory

provision — section 186.22(f) — to define “criminal street gang.”

An uncodified provision of Proposition 21 states that the

provisions of the initiative “shall not be amended by the

Legislature except by a statute passed in each house by rollcall

vote entered in the journal, two-thirds of the membership of

each house concurring, or by a statute that becomes effective

only when approved by the voters.” (Voter Information Guide,

Primary Elec., supra, text of Prop. 21, § 39, p. 131.) Assembly

Bill 333 did not receive two-thirds support in either house (Sen.

Daily J. (Sept. 1, 2021) p. 2284 [25 of 40 members voted in favor];

Assem. Daily J. (Sept. 8, 2021.) p. 2927 [41 of 80 members voted

in favor]; see Cal. Const., art. IV, § 2, subd. (a)(1)–(2)), nor was

the bill submitted to the voters for approval. The Attorney

General argues that Assembly Bill 333’s amendment of section

186.22, incorporated by reference into section 190.2(a)(22),

unconstitutionally amends Proposition 21 because the voters

intended the enhanced punishment of death or life without

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parole to apply to gang murders as defined at the time

Proposition 21 was enacted.

Although Proposition 21 amended section 186.22 by

increasing the punishment of certain enhancements (§ 186.22,

subds. (b), (c), (d)) and adding predicate offenses in determining

“a pattern of criminal gang activity” (id., subd. (e)), the 2000

initiative did not amend section 186.22(f)’s definition of

“criminal street gang” and instead technically reenacted it

without substantive change. (See County of San Diego v.

Commission on State Mandates (2018) 6 Cal.5th 196, 209–210

[“Statutory provisions that are not actually reenacted and are

instead considered to ‘ “have been the law all along” ’ [citation]

cannot fairly be said to be part of a ballot measure”]; Gov. Code,

§ 9605.) It follows that the Legislature is free to revise section

186.22(f) independent of the supermajority requirement in

Proposition 21 itself unless the reenacted provision “is integral

to accomplishing the electorate’s goals in enacting the initiative

or other indicia support the conclusion that voters reasonably

intended to limit the Legislature’s ability to amend that part of

the statute.” (County of San Diego, at p. 214; see also Lee, supra,

81 Cal.App.5th at p. 242, rev.gr.; cf. Cal. Const., art. II, § 10,

subd. (c); Voter Information Guide, Primary Elec., supra, text of

Prop. 21, § 39, p. 131.)

The Attorney General argues that applying Assembly Bill

333’s amendment to section 186.22(f) to a special circumstance

allegation would frustrate the voters’ intent to “lock in” the

definition of “criminal street gang” as it existed at the time of

the 2000 election and would “take away” from the purpose of

Proposition 21. We address these arguments in turn.

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B.

We begin with the text of the initiative statute. We have

said that “ ‘where a statute adopts by specific reference the

provisions of another statute, regulation, or ordinance, such

provisions are incorporated in the form in which they exist at

the time of the reference and not as subsequently modified, and

that the repeal of the provisions referred to does not affect the

adopting statute, in the absence of a clearly expressed intention

to the contrary.’ ” (Palermo v. Stockton Theatres (1948) 32

Cal.2d 53, 58–59 (Palermo); see generally Jam v. International

Finance Corp. (2019) 586 U.S. __, __ [139 S.Ct. 759, 769]

[referring to this principle of statutory construction as the

“ ‘reference’ canon”].) At the same time, “ ‘there is a cognate

rule . . . to the effect that where the reference is general instead

of specific, such as a reference to a system or body of laws or to

the general law relating to the subject in hand, the referring

statute takes the law or laws referred to not only in their

contemporary form, but also as they may be changed from time

to time . . . .’ ” (Palermo, at p. 59.)

While Palermo sets forth the general rule above, it also

makes clear that the presence or absence of language referring

specifically to a statutory or regulatory provision is not

necessarily dispositive. At issue in Palermo was the California

Alien Land Act (Stats. 1921, p. lxxxiii, as amended by Stats.

1923, p. 1021), which referred to “ ‘ “any treaty now existing” ’ ”

at the time of the act’s enactment by the electorate. (Palermo,

supra, 32 Cal.2d at p. 59.) Palermo reasoned that “in view of the

fact that there is grave doubt whether our Legislature could

constitutionally delegate to the treaty-making authority of the

United States the right and power thus directly to control our

local legislation with respect to future acts [citations], we are

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constrained to hold that the reference is specific and not

general’ ” (id. at pp. 59–60), even though the act did not refer to

any specific treaty. We have observed that “[s]everal modern

decisions have applied the Palermo rule, but none have done so

without regard to other indicia of legislative intent.” (In re

Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10 (Jovan B.); see id. at

p. 816 [“ ‘the determining factor will be . . . legislative intent’ ”].)

Our application of the Palermo rule in Jovan B. is

instructive. In that case, we considered legislation that

incorporated by reference a provision of the Uniform

Determinate Sentencing Act (§ 1170 et seq.), commonly referred

to as the determinate sentencing law (DSL), into section 726 of

the Welfare and Institutions Code as a basis for calculating a

juvenile’s maximum time of confinement or commitment. The

question was whether the Legislature intended to lock in the

provisions of the DSL in effect at the time. (Jovan B., supra, 6

Cal.4th at pp. 815–816.) We concluded that it did not and held

that a juvenile’s maximum time of confinement or commitment

takes into account enhanced penalties incorporated into the

DSL after Welfare and Institutions Code section 726 was

enacted. (Jovan B., at pp. 816, 820.) We explained that

although the statute referred to two specific provisions of the

DSL (§ 1170, subd. (a)(2) and § 1170.1, subd. (a)) those

provisions merely “stated the general rule that when sentencing

a felon to prison, the court must impose either the upper,

middle, or lower term provided for the offense at issue, plus ‘any

other . . . additional term’ required or permitted by law in the

individual case.” (Jovan B., at p. 818.) “Thus, in the language

of Palermo, supra, 32 Cal.2d 53, 58–59, Welfare and Institutions

Code section 726’s reference to Penal Code sections 1170,

subdivision (a)(2) and 1170.1, subdivision (a) is not a ‘specific

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reference [to] the provisions of another statute,’ but rather is a

‘general’ reference ‘to a system or body of laws.’ ” (Jovan B., at

p. 819.)

Jovan B. went on to consider the purpose of the

amendment of Welfare and Institutions Code section 726, which

“states a broad general rule that the ‘maximum term of

imprisonment’ for juvenile confinement purposes includes

‘enhancements’ if they are pled and proven.” (Jovan B., supra,

6 Cal.4th at p. 819.) “The obvious purpose . . . was ‘to treat adult

and juvenile offenders on equal footing as far as the [maximum]

duration of their incarceration is concerned’ [citation], whatever

that period might be at the moment.” (Ibid.) We concluded:

“The Legislature cannot have anticipated that in order to

preserve this equality over time, it would be forced to

amend section 726 each and every time it altered the DSA.”

(Ibid.) In light of this determination, we held that the juvenile

was subject to the special allegation under Penal Code section

12022.1 that he had committed the offense in question while out

of custody pending trial on a prior petition, even though that

provision of the Penal Code was enacted five years after Welfare

and Institutions Code section 726. (Jovan B., at pp. 807–808,

815.)

Here, as in Jovan B., the words of the incorporating

statute “do not make clear whether it contemplates only a time-

specific incorporation.” (Jovan B., supra, 6 Cal.4th at p. 816.)

The initiative’s uncodified findings and declarations state:

“Gang-related crimes pose a unique threat to the public because

of gang members’ organization and solidarity. Gang-related

felonies should result in severe penalties. Life without the

possibility of parole or death should be available for murderers

who kill as part of any gang-related activity.” (Voter

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Information Guide, Primary Elec., supra, text of Prop. 21, § 2,

subd. (h), p. 119.) To that end, 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). The voters gave no indication in the statute

that they intended to adopt the definition of “criminal street

gang” in effect at the time. Like the statutory references in

Jovan B., the 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] contemporary form, but also as [it] may be

changed from time to time.” (Palermo, supra, 32 Cal.2d at p. 59.)

The Attorney General argues that the provisions at issue

in Jovan B. are “materially different” from those at issue here

because Proposition 21 refers “to a specific code section and

subdivision defining a particular term” in contrast to the

“general incorporation of an entire body or system of laws as in

Jovan B.” But section 186.22(f) sets forth the definition of

“criminal street gang” that is applied throughout the STEP Act

and other parts of the Penal Code. For example, the general

definition of “ ‘[o]rganized crime’ ” in section 186.2, subdivision

(d) was amended in 1996 to “also mean[] crime committed by a

criminal street gang, as defined in” section 186.22(f). (Stats.

1996, ch. 844, § 1, p. 4465.) The penalty for knowingly

supplying, selling, or giving possession or control of a firearm

with the knowledge that the person will use it to commit a felony

for the benefit of a gang, enacted in 1992, also relies on the

definition of “criminal street gang” in section 186.22(f).

(§ 186.28, subd. (a)(1); see Stats. 1992, ch. 370, § 1, p. 1405.) So,

too, does the provision for motor vehicle forfeiture when a

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member of a criminal street gang is convicted of the unlawful

possession of a firearm while present in a vehicle, as amended

in 1993. (§ 246.1, subd. (a); see Stats. 1994, 1st Ex. Sess., ch. 33,

§ 1, p. 8659.) Since 1994, the Welfare and Institutions Code has

also relied on section 186.22 to define “criminal street gang” in

providing for information-sharing among “members of a juvenile

justice multidisciplinary team engaged in the prevention,

identification, and control of crime, including, but not limited to

criminal street gang activity.” (Welf. & Inst. Code, § 830.1; see

Stats. 1994, 1st Ex. Sess., ch. 24, § 1, p. 8597.) Each of these

provisions was in place prior to the enactment of Proposition 21,

and we presume the voters were aware of the generally

applicable nature of section 186.22(f)’s definition of “criminal

street gang” when they enacted Proposition 21. (Professional

Engineers in California Government v. Kempton (2007) 40

Cal.4th 1016, 1048 (Professional Engineers) [“The voters are

presumed to have been aware of existing laws at the time the

initiative was enacted.”].)

Of course, it is the electorate’s prerogative to give the term

“criminal street gang” a fixed meaning if it chooses, regardless

of how the Legislature may subsequently define the term. But

the voters who enacted Proposition 21 did not specify that the

cross-reference to section 186.22(f) was intended to lock in the

contemporary definition, and this omission is particularly

salient in light of other aspects of the same enactment that did

just that.

Sections 14 and 16 of Proposition 21 amended portions of

the existing “Three Strikes Law.” Section 14 added section

667.1 to the Penal Code: “Notwithstanding subdivision (h) of

Section 667, for all offenses committed on or after the effective

date of this act, all references to existing statutes in subdivisions

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(c) to (g), inclusive, of Section 667, are to those statutes as they

existed on the effective date of this act, including amendments

made to those statutes by this act.” (Voter Information Guide,

Primary Elec., supra, text of Prop. 21, § 14, p. 123, italics

omitted.) Similarly, section 16 added section 1170.125 to the

Penal Code: “Notwithstanding Section 2 of Proposition 184, as

adopted at the November 8, 1994 General Election, for all

offenses committed on or after the effective date of this act, all

references to existing statutes in Section 1170.12 are to those

statutes as they existed on the effective date of this act,

including amendments made to those statutes by this act.”

(Voter Information Guide, Primary Elec., supra, text of Prop. 21,

§ 16, p. 124, italics omitted.)

Sections 14 and 16, by their terms, “change[d] the ‘lock-in’

date for determining the existence of qualifying offenses (such

as violent or serious felonies) under the Three Strikes law.

Thus, before the passage of Proposition 21, references to existing

statutes, such as the law defining violent felonies, in Penal Code

section 667 were ‘to statutes as they existed on June 30, 1993.’

(§ 667, subd. (h).) Section 14 of Proposition 21 provides that

references to existing statutes in Penal Code section 667, for all

offenses committed on or after the effective date of the initiative,

are to those statutes as they existed on the effective date of

Proposition 21 (March 8, 2000), including, but not limited to,

amendments made to those statutes by this initiative. (§ 667.1.)

Section 16 of the initiative makes a corresponding change to the

lock-in date for statutes referenced in Penal Code section

1170.12. (§ 1170.125.)” (Manduley v. Superior Court (2002) 27

Cal.4th 537, 574–575.)

The Attorney General says these provisions “were

necessary to convey the electorate’s intent that sections 667 and

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1170.12, which Proposition 21 did not directly amend, were to

implement the initiative’s amendments to other statutes that

sections 667 and 1170.12 referenced and which Proposition 21

did amend.” But if the voters’ intent was simply to ensure that

the cross-referenced list of violent felonies included those

updated by Proposition 21, then the phrase “including

amendments made to those statutes by this act” in both section

14 and section 16 would have sufficed. Instead, the voters

coupled that directive with a reference to “those statutes as they

existed on the effective date of this act,” thus ensuring that

future offenses would be classified in accordance with the

scheme then existing. The Attorney General’s explanation of

sections 14 and 16 does not account for why those provisions are

written as they are.

In People v. Fletcher (2023) 92 Cal.App.5th 1374, 1379–

1382, review granted September 20, 2023, S281282, the Court

of Appeal held that the narrower definition of “criminal street

gang” in Assembly Bill 333 cannot be applied to determine what

constitutes a serious felony for purposes of the Three Strikes

Law without running afoul of the limits on legislative

amendment set forth in both Proposition 21 and a 2012

initiative, Proposition 36 (Prop. 36, as approved by voters, Gen.

Elec. (Nov. 6, 2012)). We do not decide that issue here. We

simply observe that the text of Proposition 21 shows the voters

understood that cross-referenced statutes may evolve, and they

knew how to lock in the meaning of a cross-referenced statute.

Yet the voters chose not to do so with respect to the gang-murder

special circumstance. (Cf. Pasadena Police Officers Assn. v. City

of Pasadena (1990) 51 Cal.3d 564, 576 [“When the Legislature

‘has employed a term or phrase in one place and excluded it in

another, it should not be implied where excluded.’ ”].)

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C.

The Attorney General’s primary argument is that

application of Assembly Bill 333 would frustrate the voters’

intent by narrowing the scope of conduct covered by the gang-

murder special circumstance, thereby “taking away” from

Proposition 21. In this context, we have described an

amendment as “a legislative act designed to change an existing

initiative statute by adding or taking from it some particular

provision.” (People v. Cooper (2002) 27 Cal.4th 38, 44.) To

determine whether Assembly Bill 333 impermissibly takes away

from Proposition 21, “we must decide what the voters

contemplated.” (Pearson, supra, 48 Cal.4th at p. 571; see

Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [“the voters

should get what they enacted, not more and not less”].)

The Attorney General says application of Assembly Bill

333 here conflicts “with the electorate’s manifest intent to

substantially augment protections against violent gang crime,

including by punishing more harshly ‘murderers who kill as part

of any gang-related activity’ [(Prop. 21, § 2, subd. (h))].” He

adds, “It would be strange, in light of that intent, to conclude

that the electorate also understood that the Legislature was free

to narrow — in potentially significant ways — the scope of the

protections that Proposition 21 established.” But the phrase

“any gang-related activity” in Proposition 21 simply begs the

question of what the voters intended “gang-related activity” to

mean; it does not indicate that the voters wanted to lock in the

then-current definition. The voters chose to define the term

“criminal street gang” by reference to the existing statute,

section 186.22(f), which had been amended several times by the

Legislature before Proposition 21. In so doing, the voters

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incorporated a definition that they knew was both changeable

and had been repeatedly subject to change.

As originally enacted, the STEP Act defined “criminal

street gang” to mean “any ongoing organization, association, or

group of three or more persons, whether formal or informal,

having as one of its primary activities the commission of one or

more of the criminal acts enumerated in paragraphs (1) to (7),

inclusive, of subdivision (c), which has a common name or

common identifying sign or symbol, whose members

individually or collectively engage in or have engaged in a

pattern of criminal gang activity.” (Former § 186.22, subd. (d),

added by Stats. 1988, ch. 1256, § 1, p. 4181.) That definition has

been amended over the years, both before and after the

enactment of Proposition 21. After being recodified in 1991 at

section 186.22(f), the definition of “criminal street gang” was

expanded in 1993 and 1994 to incorporate additional

enumerated predicate offenses. (See Stats. 1993, ch. 601, § 1,

p. 3161; Stats. 1993, ch. 1125, § 3, p. 6291; Stats. 1994, ch. 47,

§ 1, p. 390, eff. Apr. 19, 1994.) Similarly, Proposition 21 added

two crimes to the list of predicate offenses and incorporated

those into the definition of “criminal street gang.” (Prop. 21, § 4

[amending § 186.22, subds. (e), (f)].) The definition of “criminal

street gang” has continued to evolve after Proposition 21, in

ways that both expand (see Stats. 2006, ch. 596, § 1, p. 4932

[amending § 186.22(f) to incorporate an expanded list of

enumerated offenses]) and contract (see Assem. Bill 333) that

definition. The voters who enacted Proposition 21 knew that the

definition of “criminal street gang” was changeable (see

Professional Engineers, supra, 40 Cal.4th at p. 1048 [we

presume voters are “aware of existing laws at the time the

initiative was enacted”]), and there is no indication they

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intended to foreclose future changes to the definition or to allow

only expansion and not contraction of the definition.

Rather, when the voters adopted Proposition 21 twelve

years after the STEP Act was first enacted, they made clear that

their purpose was to more severely punish crimes that are gang-

related as opposed to crimes that are not gang-related. As noted,

the text declares in relevant part that “[g]ang-related felonies

should result in severe penalties. Life without the possibility of

parole or death should be available for murderers who kill as

part of any gang-related activity.” (Voter Information Guide,

supra, text of Prop. 21, § 2, subd. (h), p. 119.) The proponents of

Proposition 21 emphasized its focus on stronger penalties for

criminal activity by gangs and gang members, explaining that

current law “must be strengthened to require serious

consequences” in order to protect people “from the most violent

juvenile criminals and gang offenders.” (Voter Information

Guide, argument in favor of Prop. 21, p. 48, italics omitted.)

Proponents further argued that “Proposition 21 ends the ‘slap

on the wrist’ of current law by imposing real consequences for

GANG MEMBERS, RAPISTS AND MURDERERS who cannot

be reached through prevention or education.” (Ibid.) Nowhere

do the arguments in favor of the initiative suggest that the act

would redefine or lock in the then-existing definition of

“criminal street gang” rather than incorporate a definition that

had been and continued to be subject to change.

The purpose of Assembly Bill 333 further confirms that its

application here poses no inconsistency with the voters’ intent

in enacting Proposition 21. By the time the Legislature took up

Assembly Bill 333 in 2021, California had more than three

decades of experience under the STEP Act. The Legislature was

motivated by that experience to narrow the definition of

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criminal street gang in order to focus on “true gang-related

crimes,” having determined that “in practice the original

definition of a criminal street gang was not narrowly focused on

punishing true gang-related crimes.” (Lee, supra, 81

Cal.App.5th at p. 245, rev.gr.) Assembly Bill 333 did not change

the punishment associated with gang crimes, including the

punishment of death or life without the possibility of parole for

individuals convicted of the gang-murder special circumstance.

Instead, consistent with the intent of Proposition 21 to severely

punish gang-related crimes, the Legislature in Assembly Bill

333 “redefined the term ‘criminal street gang’ so as to truly

target the population of criminals for which an enhanced

punishment is warranted.” (Lee, at p. 245; see Assem. Com. on

Public Safety, Analysis of Assem. Bill 333, as amended Mar. 30,

2021, p. 4 [Assembly Bill 333 “ ‘ensur[es] gang enhancements

are only used when necessary and fair’ ”].)

The Attorney General argues that this case is similar to

People v. Kelly (2010) 47 Cal.4th 1008, where we considered

whether an aspect of the legislatively enacted Medical

Marijuana Program (MMP) impermissibly amended the

Compassionate Use Act enacted by the voters. The

Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5

et seq.) permitted individuals to possess and cultivate limited

quantities of marijuana reasonably for “personal medical

purposes” (id., § 11362.5, subd. (d)) and provided a

corresponding affirmative defense to criminal prosecution, but

it did not impose specific quantity limits. (Kelly, at p. 1013.)

The MMP did not amend the specific statutes enacted by the

voters, but it did impose other restrictions, including quantity

limits on the affirmative defense. We found this to be an

unconstitutional amendment of the voter initiative because the

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Legislature would “take[] away from rights granted by the

initiative statute,” which “guarantee[d] that a qualified patient

may possess and cultivate any amount of marijuana reasonably

necessary for his or her current medical condition.” (Kelly, at

p. 1043.)

Unlike the legislation at issue in Kelly, Assembly Bill 333

does not intrude upon the purpose of Proposition 21. The

purpose of Proposition 21 was to heighten the penalties for gang

activity and other violent crimes. While narrowing the

definition of “criminal street gang,” Assembly Bill 333 does not

change the punishment for those convicted of the gang-murder

special circumstance. (See Lee, supra, 81 Cal.App.5th at p. 244,

rev.gr. [applying Assembly Bill 333 here “does not change the

punishment for ‘murderers who kill as part of any gang-related

activity,’ the relevant purpose of Proposition 21”].)

Gooden, supra, 42 Cal.App.5th 270, is instructive on this

point. There, the Court of Appeal held that Senate Bill No. 1437

(2017–2018 Reg. Sess.) (Senate Bill 1437), which amended the

mens rea for murder was not an impermissible amendment of

Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7,

1978)) (Proposition 7), which increased the punishment for

murder, or Proposition 115 (Prop. 115, as approved by voters,

Primary Elec. (June 5, 1990)), which expanded the list of

predicate offenses for the felony-murder rule. Gooden rejected

the Attorney General’s argument that Senate Bill 1437

amended Proposition 7 by taking away from the scope of conduct

that constitutes murder punishable by the increased

punishments specified in the initiative. (Gooden, at p. 281.) The

court emphasized that “the elements of an offense and the

punishment for an offense plainly are not synonymous.” (Ibid.)

Whereas Proposition 7 addressed the punishment for murder,

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Senate Bill 1437 addressed only the mental state required to

commit murder. (Gooden, at p. 282.) “Senate Bill 1437 did not

address the same subject matter” as Proposition 7; rather, it

“presents a classic example of legislation that addresses a

subject related to, but distinct from, an area addressed by an

initiative.” (Gooden, at p. 282; accord, People v. Nash (2020) 52

Cal.App.5th 1041, 1059 [“While the class of individuals standing

convicted of murder may be reduced in light of Senate Bill

No. 1437’s changes to the felony-murder rule and the natural

and probable consequences doctrine, the legislation does not

change or take away from the sentences those convicted of

murder are subject to, which is the mandate of Proposition 7.”].)

Gooden’s distinction between the electorate’s focus on

punishment and the Legislature’s focus on the substantive

elements of an offense applies here. The voters who enacted

Proposition 21 wanted to harshly punish the members and

activities of a “criminal street gang,” but there is no indication

that the voters had in mind a fixed meaning of the term. Murder

committed by “an active participant in a criminal street gang”

in order to “further the activities of the criminal street gang”

(§ 190.2(a)(22)) is still punishable by death or life imprisonment

without the possibility of parole, as provided by Proposition 21.

The statutory amendments enacted by Assembly Bill 333 ensure

that punishment is not imposed in other circumstances.

The Attorney General further notes that on several prior

occasions in which the Legislature amended portions of section

186.22, the Legislative Counsel advised that the amendment

required approval by two-thirds of each house. (See Legis.

Counsel’s Dig., Sen. Bill No. 444 (2005–2006 Reg. Sess.) 4 Stats.

2005, ch. 482, Summary Dig., p. 235 [“Existing law authorizes

the Legislature to amend these provisions with a 2/3 vote of each

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house.”]; Legis. Counsel’s Dig., Sen. Bill No. 1222 (2005–2006

Reg. Sess.) 6 Stats. 2006, ch. 596, Summary Dig., p. 333 [same].)

But “the Legislature’s views regarding the legality of its

enactments are not binding on the judiciary.” (People v. Lopez

(2022) 82 Cal.App.5th 1, 21, fn. 5; see Western Security Bank v.

Superior Court (1997) 15 Cal.4th 232, 244.) In any event, “ ‘[t]he

Legislature remains free to address a “ ‘related but distinct

area’ ” [citations] or a matter that an initiative measure “does

not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48

Cal.4th at p. 571.)

Finally, we observe that the Attorney General does not

argue against application of the amended definition of “criminal

street gang” in all contexts, but only when applied to the gang-

murder special circumstance. On this view, the narrower

definition of Assembly Bill 333 would apply in all other

circumstances, effectively making it easier to prove gang

allegations for the purposes of imposing the death penalty or life

imprisonment without the possibility of parole, and more

difficult to impose the less serious consequences that flow from

violations of section 186.22 itself. As one court has observed,

“[i]t is difficult to discern a rational reason for such an

anomalous choice.” (Lee, supra, 81 Cal.App.5th at p. 242,

rev.gr.)

D.

The Attorney General relies on three cases applying the

Palermo rule, but none supports a different result here. First,

the Attorney General says the specific reference in Proposition

21 to section 186.22(f) is comparable to the specific reference in

Vehicle Code section 23152 to subdivisions (a) through (f) of

section 835.6 of the Penal Code, which were held to be time-

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specific in People v. Domagalski (1989) 214 Cal.App.3d 1380

(Domagalski). The Attorney General notes that Domagalski

synthesized the following rule from intervening cases applying

Palermo: “ ‘Without exception, in each case where a statute, or

some portion of it, was incorporated by reference to its section

designation, the court found the reference to be specific and the

effect was the same as if the adopted statute had been set out

verbatim in the adopting statute, so that repeal or subsequent

modification of the statute referred to [and] did not affect the

adopting statute. Only in those cases where an entire body of

law relating to a particular subject was adopted by reference did

the court find the reference to be general so that subsequent

amendments to the incorporated statute affected the adopting

statute.’ ” (Domagalski, at pp. 1385–1386, fn. omitted.)

It is true that Proposition 21, like the statute at issue in

Domagalski, refers to a specific subdivision of section 186.22 to

define “criminal street gang.” That subdivision, however,

contains the entirety of the Penal Code’s definition of “criminal

street gang,” whereas the referenced subdivisions of section

835.6 contain only a portion of the potentially relevant

misdemeanor procedures that the Legislature could have chosen

to incorporate into Vehicle Code section 23152 but did not.

Domagalski also confirms that “the determining factor will be

the legislative intent behind the incorporating statute,” which

may be assessed through the legislative history. (Domagalski,

supra, 214 Cal.App.3d at p. 1386.) We endorsed the latter point

in Jovan B., including Domagalski among other “modern

decisions” that “have applied the Palermo rule” while noting

that “none have done so without regard to other indicia of

legislative intent.” (Jovan B., supra, 6 Cal.4th at p. 816, fn. 10.)

Domagalski is consistent with our analysis above.

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The same is true of In re Oluwa (1989) 207 Cal.App.3d 439

(Oluwa), in which the Court of Appeal considered whether an

inmate was subject to the custody credit calculation established

by the voters through Proposition 7 or whether he was entitled

to invoke more generous credit provisions later enacted by the

Legislature. Proposition 7 contained a statement that “ ‘[t]he

provisions of Article 2.5 (commencing with Section 2930) of

Chapter 7 of Title 1 of Part 3 of the Penal Code [article 2.5] shall

apply’ ” in calculating custody credit for sentences like the

inmate’s in Oluwa. (Oluwa, at p. 442.) As described in Oluwa,

article 2.5 contained three sections governing custody credit

calculation at the time Proposition 7 was passed; the custody

credits at issue were enacted as separate sections of article 2.5.

(Oluwa, at p. 443.)

The Attorney General points to Oluwa’s statement that

Proposition 7 was “not a reference to a system or body of laws or

to the general law relating to the subject at hand,” but rather

was “a specific and pointed reference to an article of the Penal

Code . . . at the time Proposition 7 incorporated article 2.5 into

section 190.” (Oluwa, supra, 207 Cal.App.3d at p. 445.) But

Oluwa did not rest on a specific reference to article 2.5; rather,

the court emphasized that the accompanying legislative

analysis “advised voters that those persons sentenced to 15

years to life in prison would have to serve a minimum of 10 years

before becoming eligible for parole” as provided in article 2.5 at

the time Proposition 7 was adopted. (Oluwa, at p. 445.) Oluwa

explained that allowing inmates like Oluwa to benefit from

subsequent amendments that would reduce that minimum

specifically presented to the voters would frustrate the voters’

intent and constitute an impermissible legislative amendment

of the initiative. (Id. at p. 446.) Here, by contrast, we have no

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similar representation in the ballot materials accompanying

Proposition 21 that applies or even mentions a specific definition

of “criminal street gang,” and thus no basis to infer that the

voters intended to lock in such a definition.

The Attorney General also cites People v. Anderson (2002)

28 Cal.4th 767, which concerned the proper interpretation of

section 26, a statute precluding duress as a defense to crimes

“punishable with death.” When section 26’s predecessor was

first enacted, this category of crimes included all forms of

murder. The defendant argued that because only first degree

murder with special circumstances is so punishable today,

duress should constitute a defense to all forms of murder except

first degree murder with special circumstances. (Anderson, at

p. 773.) In other words, the defendant argued that the reference

to crimes “punishable with death” in section 26 was general and

therefore evolves with the changing nature of what constitutes

a capital offense. After considering various indicia of legislative

intent and the “anomalous[]” and “random results” that would

result from the defendant’s position, we held that duress is “not

a defense to any form of murder” and that the reference in

section 26 was specific. (Anderson, at pp. 775, 780; see id. at

pp. 774–778.)

The Attorney General says “the reference [in Proposition

21] is even more specific than the reference at issue in

Anderson.” This argument appears to draw the wrong lesson

from Anderson. Anderson illustrates that a statutory reference

that appears to be general can, upon inquiry into legislative

intent, turn out to be specific. This case shows the reverse also

can be true: the statutory reference in section 190.2 may appear

specific, but the relevant indicia of voter intent show that the

reference is general.

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We conclude that applying Assembly Bill 333’s definition

of “criminal street gang” to the gang-murder special

circumstance does not unconstitutionally amend section

190.2(a)(22). Accepting, as did the Court of Appeal, the Attorney

General’s concession below that the evidence presented at trial

is not sufficient to sustain the gang allegations under Assembly

Bill 333, we vacate the true finding on the gang-murder special

circumstance in this case.

CONCLUSION

We reverse the judgment below and remand for further

proceedings consistent with this opinion.

LIU, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

26

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Rojas

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 80 Cal.App.5th 542

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S275835

Date Filed: December 18, 2023

__________________________________________________________

Court: Superior

County: Kern

Judge: John W. Lua

__________________________________________________________

Counsel:

Sharon G. Wrubel, under appointment by the Supreme Court, for

Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,

Chief Assistant Attorney General, Michael P. Farrell and Susan

Sullivan Pithey, Assistant Attorneys General, Dana Muhammad Ali,

Idan Ivri, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi,

Amanda D. Cary, William K. Kim and Stacy S. Schwartz, Deputy

Attorneys General, for Plaintiff and Respondent.

Kent S. Scheidegger and Kymberlee C. Stapleton for the Criminal

Justice Legal Foundation as Amicus Curiae on behalf of Plaintiff and

Respondent.

Gregory D. Totten for the California District Attorneys Association as

Amicus Curiae on behalf of Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Sharon G. Wrubel

Attorney at Law

P.O. Box 1240

Pacific Palisades, CA 90272

(310) 459-4689

Stacy S. Schwartz

Deputy Attorney General

300 South Spring Street

Los Angeles, CA 90013

(213) 269-6099