section 186.22(f) then current version in California

2023The Lee court reasoned the voters “did not contemplate a time-specific incorporation of the then-current version of section 186.22, subdivision (f), into the gang-murder special-circumstance statute.” (Lee, supra, 81 Cal.App.5th at p. 241.) It explained, “Section 186.22 was originally enacted by the Legislature 70 in 1987. [Citation.] As part of Proposition 21, in March 2000 the electorate amended certain provisions of section 186.22 by increasing the sentences of the gang enhancements provided by subdivisions (b), (c), and (d). [Citation.] The electorate also updated the list of predicate off

2023The Lee court reasoned the voters “did not contemplate a time-specific incorporation of the then-current version of section 186.22, subdivision (f), into the gang-murder special-circumstance statute.” (Lee, supra, 81 Cal.App.5th at p. 241.) It explained, “Section 186.22 was originally enacted by the Legislature 70 in 1987. [Citation.] As part of Proposition 21, in March 2000 the electorate amended certain provisions of section 186.22 by increasing the sentences of the gang enhancements provided by subdivisions (b), (c), and (d). [Citation.] The electorate also updated the list of predicate off

2023The majority reasoned that Assembly Bill 333 was an amendment to section 190.2, subdivision (a)(22) because it “ ‘takes away’ from the scope of conduct that Proposition 21 made punishable under section 190.2.” (Rojas, supra, 80 Cal.App.5th at p. 555.) The court in Lee, however, rejected respondent’s contention, reasoning the rule of statutory construction they relied on “is not to be mechanically applied.” (Lee, supra, 81 Cal.App.5th at p. 241.) The Lee court reasoned the voters “did not contemplate a time-specific incorporation of the then-current version of section 186.22, subdivision (f), i

2022(Mar. 7, 2000) text of Prop. 21, ... § 39, p. 131.) Assembly Bill 333 did not comply with that requirement and therefore cannot amend Proposition 21.’ (Rojas, supra, 80 Cal.App.5th at p. 555[…].) In practical effect, Rojas holds that a special circumstance murder allegation under section 190.2[, subdivision] (a)(22) may be proven based on a different, less restrictive definition of a ‘criminal street gang’ than is found in the current version of section 186.22.

2023“The proper remedy for this type of failure of proof—where newly required elements were ‘never tried’ to the jury—is to remand and give the People an 14. opportunity to retry the affected charges.” (People v. E.H. (2022) 75 Cal.App.5th 467 , 480; accord, People v. Rodriguez (2022) 75 Cal.App.5th 816 , 822-823 & fn. 19.) III.

2023“The proper remedy for this type of failure of proof—where newly required elements were ‘never tried’ to the jury—is to remand and give the People an opportunity to retry the affected charges.” (People v. E.H. (2022) 75 Cal.App.5th 467 , 480; accord, People v. Rodriguez (2022) 75 Cal.App.5th 816 , 822-823 & fn. 19.) Although not mentioned by either party, we find that vacating the section 186.22, subdivision (b) gang enhancement would also undo the section 12022.53, subdivision (e)(1) firearm enhancement.

2023(In re Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10 (Jovan B.); People v. Pecci (1999) 72 Cal.App.4th 1500, 1505 .) Rather, “where the words of an incorporating statute do not make clear whether it contemplates only a time-specific incorporation, ‘the determining factor will be . . . legislative intent . . . .’” (Jovan B., supra, at p. 816, quoting People v. Domagalski (1989) 214 Cal.App.3d 1380, 1386 .) Based on our review of the legislative materials previously discussed at length in Lee, supra, 81 Cal.App.5th at pages 241 through 245, we do not believe the voters contemplated a time-specific

2022(See In re Jovan B. (1993) 6 69 Cal.4th 801 , 816, fn. 10 (Jovan B.) [“Several modern decisions have applied the Palermo rule, but none have done so without regard to other indicia of legislative intent”]; People v. Pecci (1999) 72 Cal.App.4th 1500, 1505 [“the Palermo rule is not to applied in a vacuum”].) Rather, “where the words of an incorporating statute do not make clear whether it contemplates only a time-specific incorporation, ‘the determining factor will be . . . legislative intent . . . .’” (Jovan B., supra, at p. 816, quoting People v. Domagalski (1989) 214 Cal.App.3d 1380, 1386 .)

2023(See People v. Tran (2022) 13 Cal.5th 1169 , 1207 (Tran).) Under the current version of section 186.22, a “criminal street gang” is defined as “an ongoing, organized 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 subdivision (e) [a shorter list than previously], having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f), emphasis added.) The st

2023(People v. Tran (2022) 13 Cal.5th 1169 , 1206-1207; see also People v. Lopez (2021) 73 Cal.App.5th 327 , 343; People v. Ramos (2022) 77 Cal.App.5th 1116 , 1126-1127.) Where the evidence presented at trial is insufficient to sustain a gang enhancement under the current version of section 186.22, a defendant is entitled to have the enhancement reversed and the matter remanded for retrial under the current statute.

2026DISCUSSION On appeal, Lemus contends his sentence must be reversed: (1) because the trial court did not determine whether his prior adjudication qualifies as a strike under the current version of section 186.22, subdivision (b), as required by Fletcher, supra, 18 Cal.5th 576 ; and (2) the court erred by finding the prior serious felony enhancement true based on the juvenile adjudication.

2026DISCUSSION On appeal, Lemus contends his sentence must be reversed: (1) because the trial court did not determine whether his prior adjudication qualifies as a strike under the current version of section 186.22, subdivision (b), as required by Fletcher, supra, 18 Cal.5th 576 ; and (2) the court erred by finding the prior serious felony enhancement true based on the juvenile adjudication.

2023(In re Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10 (Jovan B.); People v. Pecci (1999) 72 Cal.App.4th 1500, 1505 .) Rather, “where the words of an incorporating statute do not make clear whether it contemplates only a time-specific incorporation, ‘the determining factor will be . . . legislative intent . . . .’” (Jovan B., supra, at p. 816, quoting People v. Domagalski (1989) 214 Cal.App.3d 1380, 1386 .) Based on our review of the legislative materials previously discussed at length in Lee, supra, 81 Cal.App.5th at pages 241 through 245, we do not believe the voters contemplated a time-specific

2022(See In re Jovan B., supra, 6 Cal.4th at p. 816 ; People v. Fong, supra, 217 Cal.App.4th at pp. 266-267.) Because the reference is not made “in any time-specific way,” we look to other indicators.

2025The version at issue in Albillar differed slightly (see Albillar, supra, 51 Cal.4th at p. 54 ), but those differences are not material to our analysis. 13 in Albillar.

2025(See Albillar, supra, 51 Cal.4th at p. 60 [gang enhancement’s requirement that crime be for benefit of, at direction of, or in association with criminal street gang indicates Legislature’s intent to limit enhancement to gang-related crimes].) This is not what our Supreme Court concluded 5 We quote here the current version of section 186.22, subdivision (a).

2024(Clark, supra, 15 Cal.5th at p. 763.) It is undisputed that Ruby was a Mob member when he committed these murders, attempted murders, and stabbings with the intent to kill rival Sureños, and that he committed them within three years of the dates the charged offenses were alleged to have been committed.

2022LEXIS 624, *12] [analyzing whether the voters “contemplate[d] a time-specific incorporation of the then-current version of section 186.22, subdivision (f), into the gang-murder special circumstance statute”].) The first step in determining voter intent is “to scrutinize the statute’s words, assigning them their usual and ordinary meanings and construing them in the context of the overall statutory scheme.” (People v. Spiller (2016) 2 Cal.App.5th 1014, 1021 .) “If the language of the statute allows for more than one reasonable interpretation, we will look to ‘“‘other indicia of the voters’ inte

2021(See, e.g., People v. Zermeno (1999) 21 Cal.4th 927, 930 [citing the definition of a “ ‘pattern of criminal gang activity,’ ” from the then-current version of section 186.22, subd. (e)].) 11 Defendant has not challenged the propriety of the court’s ruling in admitting this evidence, and we do not consider it. 31 PEOPLE v. NAVARRO Opinion of the Court by Cantil-Sakauye, C.

2010Bill No. 1555, as amended June 23, 1987, § 1, pp. 5-6; former § 186.22(a), as enacted by Stats. 1988, ch. 1256, § 1, p. 4179, repealed and reenacted by Stats. 1989, ch. 930, §§ 5, 5.1, pp. 3251, 3253.) The elimination of the bill’s original requirement that the felonious conduct be gang related is “significant indicia of legislative intent.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192 [ 48 Cal.Rptr.3d 108 , 141 P.3d 225 ].) Defendants cite to a number of letters and reports submitted by various persons and groups to the Legislature in support of Senate Bill No. 1555.

2010Bill No. 1555, as amended June 23, 1987, § 1, pp. 5-6; former § 186.22(a), as enacted by Stats. 1988, ch. 1256, § 1, p. 4179, repealed and reenacted by Stats. 1989, ch. 930, §§ 5, 5.1, pp. 3251, 3253.) The elimination of the bill’s original requirement that the felonious conduct be gang related is “significant indicia of legislative intent.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192 [ 48 Cal.Rptr.3d 108 , 141 P.3d 225 ].) Defendants cite to a number of letters and reports submitted by various persons and groups to the Legislature in support of Senate Bill No. 1555.