Retroactive application of AB 333 to the gang murder special circumstance does not violate Proposition 21. Oliva was convicted of first degree murder with a gang special circumstance and gun use enhancement found true. On appeal he urged retroactive application of changes in the law regarding proof of a gang crime (AB 333). Held: Reversed. Under section 190.2(a)(22), the punishment for first degree murder is death or LWOP if the defendant intentionally killed the victim while he was an active participant in a criminal street gang, and the murder was carried out to further the activities of the gang. AB 333 changed the definition of “criminal street gang.” Section 190.2(a)(22), was added by Prop. 21. Although the provisions of Prop. 21 may not be amended without a two-thirds vote of the Legislature, there is nothing to suggest that the electorate intended to impose a time-specific incorporation of the term “criminal street gang” in the gang-murder special circumstance statute. Rather, it was intended to remain parallel to the definition contained in Penal Code section 186.22.
The gang enhancement must be vacated and the cause remanded based on AB 333’s amendment of Penal Code section 186.22. After AB 333, section 186.22 imposes stricter requirements to prove a “pattern of criminal activity” and “criminal street gang.” It clarified the proof required to show an offense “benefits, promotes, furthers, or assists”’ a criminal street gang must be more than reputational. These amendments are retroactive because they added elements to the substantive offense and gang enhancement.
Assuming that the bifurcation of gang enhancements pursuant to Penal Code section 1109 is retroactive, the introduction of gang evidence was harmless. AB 333 added section 1109, which allows a defendant to request a bifurcated trial when there is a gang enhancement allegation. Section 1109 “does not apply to the determination of special circumstance allegations under section 190.2(a)(22).” (People v. Montano (2022) 80 Cal.App.5th 82, 114.) Because much of the gang evidence introduced at trial was admissible to prove the gang murder special circumstance, any failure to bifurcate the proceedings in this case was harmless (People v. Watson (1956) 46 Cal.2d 818). [Editor’s Note: The Courts of Appeal are split on whether section 1109 applies retroactively; the issue is pending review in People v. Burgos (2022) 77 Cal.App.5th 550, review granted 7/13/2022 (S274743).]
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E073979.PDF