Because defendant’s 2009 prior was a strike on the date of the conviction, it remains a strike, regardless of Assembly Bill No. 333’s amendments to Penal Code section 186.22. Defendant was convicted of voluntary manslaughter, with various enhancements. He admitted one strike prior, a 2009 conviction for unlawful taking or driving of a vehicle, which was a strike only because a gang enhancement (§ 186.22, subd. (b)) was found true. Defendant appealed, arguing, among other things, that there was insufficient evidence that his prior conviction was a strike in light of AB 333’s amendments to section 186.22 (effective 1/1/2022). Held: Affirmed. The issue was forfeited because defendant admitted the strike prior. The court also rejected the contention on the merits. Because AB 333 is ameliorative legislation, it applies to all convictions not yet final on its effective date, and the true finding on defendant’s strike prior is not yet final. However, defendant’s 2009 conviction is long since final. The Three Strikes law provides that the determination of whether a prior conviction is a prior serious or violent felony conviction shall be made upon the date of that prior conviction. (Pen. Code, § 1170.12, subd. (b)(1); accord, § 667, subd. (d)(1).) “The fact that the Legislature has changed the definitions of active gang participation and of a gang enhancement under section 186.22 cannot change the status of defendant’s final 2009 conviction as a strike prior.” [Editor’s Note: The Third District recently reached a different conclusion on this issue in People v. Farias (May 26, 2023, C094195) __ Cal.App.5th __ (ordered published 6/14/2023).]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E078721.PDF