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Name: People v. Aguirre (2023) 96 Cal.App.5th 488
Case #: B323282
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/16/2023

A gang-enhanced felony committed before Assembly Bill No. 333’s effective date still qualifies as a prior serious felony within the meaning of the Three Strikes law. In 2022, defendant was charged with unlawful possession of a firearm, ammunition, and a machine gun. As to each charge it was alleged that defendant suffered a 2021 prior strike conviction for possessing a firearm for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant moved to dismiss the prior strike allegations, contending his violation of section 186.22 no longer qualified as a serious felony conviction after the passage of AB 333, which (eff. 1/1/2022) amended section 186.22 to require evidence that the firearm possession provide more than a reputational benefit to the street gang. Because no such evidence supported defendant’s prior conviction, the trial court concluded that it no longer qualified as a strike and struck the allegations. Defendant pleaded no contest to the three charges against him and was sentenced to two years in state prison. The People appealed. Held: Reversed. In 2012, the electorate passed Proposition 36, which provides that, for all offenses committed on or after November 7, 2012, determining whether a prior conviction qualifies as a serious felony conviction or “strike” must be made “upon the date of that prior conviction” and based on the relevant statute as it existed on November 7, 2012. These provisions fix or lock in the status of a conviction as a strike on the date of the prior conviction. AB 333 did not change that. Thus, AB 333 did not retroactively alter the strike status of defendant’s 2021 conviction for violating section 186.22. Because defendant’s violation of section 186.22 was a “strike” in 2021, it remains so today. The trial court erred in striking the prior conviction allegations. [Editor’s Notes: (1) The court distinguished People v. Farias (2023) 92 Cal.App.5th 619, review granted 9/27/2023 (S281027/C094195), on which defendant relied. “The issue in Farias was whether the defendant’s 2009 conviction for active participation in a criminal street gang could provide the basis for imposing a five-year serious felony enhancement under section 667, subdivision (a)(1).” The court found that issue not relevant for two reasons. First, defendant’s case deals with the impact of a legislative enactment (which operates prospectively), as opposed to a judicial decision (which operates retrospectively). Second, Proposition 36’s lock-in provisions apply to the Three Strikes law, not to serious felony enhancements. (2) Farias has been granted review and held under People v. Fletcher (2023) 92 Cal.App.5th 1374, review granted 9/27/2023 (S281282/E077553), which presents the following issues: “(1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), or is that determination made on ‘the date of that prior conviction’? (See Pen. Code, §§ 667, subd. (d)(1) & 1170.12, subd. (b)(1).) (2) Does Assembly Bill No. 333 (Stats. 2021, ch. 699), which modified the criminal street gang statute (Pen. Code, § 186.22), unconstitutionally amend Proposition 21 and Proposition 36, if applied to strike convictions and serious felony convictions?”]