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Constitutional Challenge to AB 333’s Application to the Gang-Murder Special Circumstance

Case Name: People v. Rojas (2023) 15 Cal.5th 561
Case #: S275835
Last Updated: December 18, 2023

Does Assembly Bill No. 333 (Stats. 2021, ch. 699) unconstitutionally amend Proposition 21, if applied to the gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22))?

Assembly Bill No. 333, which narrowed the definition of “criminal street gang,” did not unconstitutionally amend Proposition 21, and the new definition of “criminal street gang” properly applies to the gang-murder special circumstance added by that proposition. Rojas was convicted of first degree murder, and the jury found true gang and firearm enhancements and the gang-murder special circumstance (Pen. Code, § 190.2(a)(22)). On appeal, Rojas argued that all gang allegations should be reversed because AB 333 narrowed the definition of “criminal street gang” on which these charges relied. (See Pen. Code, § 186.22(f).) The Court of Appeal held the new definition could not constitutionally apply to the gang-murder special circumstance because this special circumstance was added by Proposition 21, which does not permit amendment of its provisions on a mere majority vote in the Legislature. The California Supreme Court granted review to resolve a conflict in the Courts of Appeal on this issue. Held: Reversed. The electorate placed a two-thirds vote condition on amendments to the provisions of Proposition 21 and AB 333 was not passed by a supermajority vote. But AB 333’s amendments to section 186.22(f) did not amount to an amendment of the “provisions” of Proposition 21. Although Proposition 21 amended section 186.22 by increasing the punishment of certain enhancements and adding predicate offenses, it did not amend section 186.22(f)’s definition of “criminal street gang” and instead technically reenacted it without substantive change. The electorate did not demonstrate an intent to freeze or lock-in place the definition of “criminal street gang” when it referred to section 186.22(f) in the gang-murder special circumstance. This is properly read as a general reference to section 186.22(f) that incorporates changes to the definition. Moreover, applying the new definition to the gang-murder special circumstance would not “take away” from what the electorate intended because Proposition 21 was meant to increase punishment for gang-related conduct rather than to enact a frozen definition of what amounts to gang-related conduct.

This case was decided on 12/18/2023. Justice Liu authored the opinion of the court (unanimous decision).

Review on this issue had also been granted with briefing deferred in:

Second District

  • People v. Lee (B300756, B305493) [nonpub. opn.], review granted 10/19/2022 (S275449)
  • People v. Gonzalez (B302834/B303671) [nonpub. opn.], review granted 2/15/2023 (S277936)
  • In re D.R. (B317364) [nonpub. opn.], review granted 5/17/2023 (S279489)

Third District

  • People v. Gonzalez (C086562) [nonpub. opn.], review granted 1/11/2023 (S277482)

Fourth District

  • People v. Lopez (E073016) [nonpub. opn.], review granted 2/1/2023 (S277304)
  • People v. Herbert (D078399) [nonpub. opn.], review granted 3/1/2023 (S277900)
  • People v. Oliva (2023) 89 Cal.App.5th 76, review granted 5/17/2023 (S279485/E073979)
  • People v. Chagolla (D079231) [nonpub. opn.], review granted 6/21/2023 (S279679)

Fifth District

  • People v. Nunez (F080359) [nonpub. opn.], review granted 10/19/2022 (S275838)
  • People v. Trevino (F080725) [nonpub. opn.], review granted 11/16/2022 (S276499)
  • People v. Laws (F081267) [nonpub. opn.], review granted 4/19/2023 (S278836)
  • People v. Sutton (F079285) [nonpub. opn.], review granted 4/19/2023 (S278770)
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