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A 2021 law that limited the definition of criminal street gangs is constitutional, the California Supreme Court ruled Dec. 18. 

Assembly Bill 333 narrowed the definition of criminal street gang to gangs in which people collectively committed crimes—previously, social groups in which people committed crimes individually could count toward a criminal street gang. It also narrowed the definition of furthering the street gang—committing a crime to benefit the gang’s reputation no longer counts under the law of benefitting the gang. 

The gang enhancement can impose higher sentences for people convicted of crimes. If a person is convicted of first degree murder with the allegation that they were active in a criminal street gang, they can be sentenced to the death penalty or life imprisonment.

The rules for criminal street gangs were last amended in 2000, under Proposition 21. Under California law, propositions cannot be amended unless the amendment is approved by voters or a two-thirds majority in each house.

The Supreme Court said that Proposition 21 only concerned the length of punishment for the crimes, not the definition of the crimes.

“We have no similar representation in the ballot materials accompanying Proposition 21 that applies or even mentions a specific definition of ‘criminal street gang,’ and thus no basis to infer that the voters intended to lock in such a definition,” their ruling says.

The Supreme Court’s ruling resolves split case law in the California Court of Appeal. Assembly Bill 333 is constitutional, said the Fourth District Court of Appeal, Division Two, which reviews cases from San Bernardino and Riverside. It is not constitutional, said the Fifth District Court of Appeal, which reviews cases from the Central Valley.

The Fourth District’s case emerged from a 2015 Christmas Day murder in a Hesperia In-N-Out parking lot.

The murder

John Oliva fatally shot David Bustamante after yelling “La Eme,” a term for the Mexican Mafia. Oliva was convicted of felony murder with prior convictions and three enhancements. He later appealed, arguing that he should be sentenced under Assembly Bill 333’s reforms. The published opinion establishes that Assembly Bill 333, which tightened the burden to prove gang enhancements, applies to cases already decided before the law came into effect, including Oliva’s. The opinion also said that Assembly Bill 333 was constitutional, for the same reason the Supreme Court found.

“We find 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,” their ruling says.

The Kern case

In Kern County, Fernando Rojas was convicted of premeditated murder with active gang participation and possession of a firearm. He was accused of fatally shooting Brandon Ellington after a fight outside a casino for the benefit of the Varrio Chico Lamont criminal street gang. 

On June 29, 2022, the Fifth District Court of Appeal in Kern County ruled that the bill violated the California Constitution by amending the proposition in violation of its no-amendment clause. 

“The appropriate remedy is not to void Assembly Bill 333 in its entirety, but rather to disallow this unconstitutional application of Assembly Bill 333,” they wrote. Justice Mark Snauffer dissented.

It was this ruling, People v. Rojas, that the Supreme Court reviewed.

Case information

Sharon Wrubel, under appointment, represented Rojas.

Justice Goodwin Liu wrote the unanimous opinion.

Read the Kern ruling here.

Read the Hesperia ruling here.

Read the ruling here.

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