IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO ROJAS,

Defendant and Appellant.

S275835

Fifth Appellate District

F080361

Kern County Superior Court

BF171239B

December 18, 2023

Justice Liu authored the opinion of the Court, in which Chief 

Justice Guerrero and Justices Corrigan, Kruger, Groban, 

Jenkins, and Evans concurred. 
1

PEOPLE v. ROJAS

S275835

Opinion of the Court by Liu, J.

In 2000, California voters adopted Proposition 21, the 

Gang Violence and Juvenile Crime Prevention Act of 1998 

(Proposition 21). Proposition 21 added the gang-murder special 

circumstance, codified at Penal Code section 190.2, subdivision 

(a)(22) (section 190.2(a)(22)). (All undesignated statutory 

references are to the Penal Code.) Under this provision, a 

person convicted of first degree murder is subject to the death 

penalty or life imprisonment without the possibility of parole if 

the jury finds “[t]he defendant intentionally killed the victim 

while the defendant was an active participant in a criminal 

street gang, as defined in subdivision (f) of Section 186.22, and 

the murder was carried out to further the activities of the 

criminal street gang.” (§ 190.2(a)(22), italics added.) 

Proposition 21 does not permit amendment of its provisions 

except by the voters or by legislative amendment passed with a 

two-thirds majority of each house. (Voter Information Guide, 

Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 39, p. 131.)

The definition of a “criminal street gang” in section 186.22, 

subdivision (f) (section 186.22(f)) was first enacted in 1988 as 

part of the California Street Terrorism Enforcement and 

Prevention Act (STEP Act) (§ 186.20 et seq.), which created the 

offense of active participation in a gang and introduced 

sentencing enhancements for gang-related felonies. (Stats. 

1988, ch. 1256, § 1, p. 4179; see Pen. Code, § 186.22, subds. (a), 

(b)(2).) The Legislature has amended the definition of “criminal 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

2

street gang” a few times over the years, generally expanding its 

scope. But in 2021, the Legislature substantially narrowed 

section 186.22(f)’s definition of “criminal street gang” and, by 

extension, what it means to “further the activities of the 

criminal street gang” for purposes of the special circumstance in 

section 190.2(a)(22). (See Assembly Bill No. 333 (2021–2022 

Reg. Sess.) (Assembly Bill 333).)

The issue before us is whether applying this recent 

legislative enactment, Assembly Bill 333, to the gang-murder 

special circumstance in section 190.2(a)(22) constitutes an 

unlawful amendment of Proposition 21. The issue has divided 

the Courts of Appeal. (Compare People v. Rojas (2022) 80 

Cal.App.5th 542, 557 [Assembly Bill 333’s amendments to 

§ 186.22 cannot be applied to the gang-murder special 

circumstance without taking away from the scope of conduct 

made punishable under Proposition 21] with People v. Lee (2022) 

81 Cal.App.5th 232, 245, review granted and briefing deferred 

Oct. 19, 2022, S275449 (Lee) [Assembly Bill 333 did not amend 

Proposition 21, which was intended to track any subsequent 

changes to § 186.22] and People v. Oliva (2023) 89 Cal.App.5th 

76, 90, review granted and briefing deferred May 17, 2023, 

S279485 [same].) We hold that the application of Assembly Bill 

333 to the gang-murder special circumstance does not violate

the limitation on legislative amendment in Proposition 21.

I.

In 2019, Fernando Rojas and his codefendant Victor 

Nunez were found guilty of deliberate, premeditated murder 

(§ 187, subd. (a)) with true findings on the gang-murder special 

circumstance (§ 190.2(a)(22)), a gang enhancement (§ 186.22, 

subd. (b)(1)), and various firearm allegations (§§ 12022, 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

3

subd. (d), 12022.53, subds. (d) & (e)). Nunez, a fellow gang 

member, “shot and killed an individual with whom [Rojas] had 

an altercation moments prior.” (Rojas, supra, 80 Cal.App.5th at

p. 546.) Rojas and Nunez were also found guilty of active 

participation in a criminal street gang. (§ 186.22, subd. (a).) 

Based on the special circumstance finding, the trial court 

sentenced Rojas to life imprisonment without the possibility of 

parole, plus 25 years to life for the firearm enhancement. 

In 2021, while Rojas’s appeal was pending, the Legislature 

passed Assembly Bill 333, enacting the STEP Forward Act of 

2021. (Stats. 2021, ch. 699, § 1.) “Assembly Bill 333 made the 

following changes to the law on gang enhancements: First, it 

narrowed the definition of a ‘criminal street gang’ to require that 

any gang be an ‘ongoing, organized association or group of three 

or more persons.’ (§ 186.22, subd. (f), italics added.) Second, 

whereas section 186.22, former subdivision (f) required only 

that a gang’s members ‘individually or collectively engage in’ a 

pattern of criminal activity in order to constitute a ‘criminal 

street gang,’ Assembly Bill 333 requires that any such pattern 

have been ‘collectively engage[d] in’ by members of the gang. 

(§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also 

narrowed the definition of a ‘pattern of criminal activity’ by 

requiring that (1) the last offense used to show a pattern of 

criminal gang activity occurred within three years of the date 

that the currently charged offense is alleged to have been 

committed; (2) the offenses were committed by two or more gang 

‘members,’ as opposed to just ‘persons’; (3) the offenses 

commonly benefitted a criminal street gang; and (4) the offenses 

establishing a pattern of gang activity must be ones other than 

the currently charged offense. (§ 186.22, subd. (e)(1), (2).) 

Fourth, Assembly Bill 333 narrowed what it means for an 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

4

offense to have commonly benefitted a street gang, requiring 

that any ‘common benefit’ be ‘more than reputational.’ 

(§ 186.22, subd. (g).)” (People v. Tran (2022) 13 Cal.5th 1169, 

1206 (Tran); see People v. Cooper (2023) 14 Cal.5th 735, 738

[same].)

In Tran, we held that Assembly Bill 333’s amendments to 

section 186.22 apply retroactively to cases pending on appeal 

under the rule of In re Estrada (1965) 63 Cal.2d 740. (Tran, 

supra, 13 Cal.5th at pp. 1206–1207.) In light of Tran, the 

Attorney General conceded below that Assembly Bill 333 applies 

here and that because a reasonable jury could conclude that the 

common benefit of the murder was based only on reputational 

evidence, all the gang-based findings must be vacated, except for 

the gang-murder special circumstance. (Rojas, supra, 80 

Cal.App.5th at p. 546.) Accepting this concession, the Court of 

Appeal reversed the gang enhancement and vicarious firearm 

findings on Rojas’s murder conviction and his conviction of 

active gang participation. (Ibid.) But the court also agreed with 

the Attorney General that Assembly Bill 333 could not be 

applied to the gang-murder special circumstance. (Rojas, at

pp. 550–558.)

The Court of Appeal reasoned that Assembly Bill 333, as 

applied to the gang-murder special circumstance, is 

unconstitutional because it would “ ‘take[] away’ from the scope 

of conduct that Proposition 21 made punishable under section 

190.2” and was not passed by a supermajority vote. (Rojas,

supra, 80 Cal.App.5th at p. 555.) The court further explained 

that Proposition 21’s increase in the punishment for certain 

gang-related murders was “definitionally and conceptually 

inseparable” from the gang conduct defined in section 186.22.

(Rojas, at p. 556.) Therefore, applying Assembly Bill 333’s
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

5

revised definition of a criminal street gang to the gang-murder 

special circumstance would be unconstitutional, even though 

Assembly Bill 333 did not reduce the penalty established by 

Proposition 21’s gang-murder special circumstance. (Rojas, at

p. 556.) The court concluded that “[t]he appropriate remedy is 

not to void Assembly Bill 333 in its entirety, but rather to 

disallow this unconstitutional application of Assembly Bill 333.” 

(Id. at p. 557.) 

Justice Snauffer dissented on this issue, observing that 

the voters who passed Proposition 21 were concerned only with 

“increasing the punishment for certain gang-related murders,” 

not with the underlying definition of any crime. (Rojas, supra, 

80 Cal.App.5th at p. 561 (conc. & dis. opn. of Snauffer, J.).) In 

his view, Proposition 21’s voters “ ‘got, and still have, precisely 

what they enacted — stronger sentences for persons convicted 

of [gang-related special-circumstance] murder.’ ” (Rojas, at

p. 560, quoting People v. Superior Court (Gooden) 42 

Cal.App.5th 270, 289 (Gooden).)

We granted review to decide whether Assembly Bill 333’s 

application to the gang-murder special circumstance

unconstitutionally amends Proposition 21.

II.

“The Legislature may not amend an initiative statute 

without subsequent voter approval unless the initiative permits 

such amendment, ‘and then only upon whatever conditions the 

voters attached to the Legislature’s amendatory 

powers.’ ” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 

564, 568 (Pearson); see Cal. Const., art. II, § 10, subd. (c).) “The 

purpose of California’s constitutional limitation on the 

Legislature’s power to amend initiative statutes is to ‘protect the 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

6

people’s initiative powers by precluding the Legislature from 

undoing what the people have done, without the electorate’s 

consent.’ ” (Proposition 103 Enforcement Project v. 

Quackenbush (1998) 64 Cal.App.4th 1473, 1484.)

“We have described an amendment as ‘a legislative act 

designed to change an existing initiative statute by adding or 

taking from it some particular provision.’ [Citation.] But this 

does not mean that any legislation that concerns the same 

subject matter as an initiative, or even augments an initiative’s 

provisions, is necessarily an amendment for these purposes. 

‘The Legislature remains free to address a “ ‘related but distinct 

area’ ” [citations] or a matter that an initiative measure “does 

not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48 

Cal.4th at p. 571.)

“When we interpret an initiative, we apply the same 

principles governing statutory construction. We first consider 

the initiative’s language, giving the words their ordinary 

meaning and construing this language in the context of the 

statute and initiative as a whole. If the language is not 

ambiguous, we presume the voters intended the meaning 

apparent from that language, and we may not add to the statute 

or rewrite it to conform to some assumed intent not apparent 

from that language. If the language is ambiguous, courts may 

consider ballot summaries and arguments in determining the 

voters’ intent and understanding of a ballot measure.” (Pearson, 

supra, 48 Cal.4th at p. 571.)

A.

California voters enacted Proposition 21 in 2000, 

increasing the penalties for certain gang-related felonies. As 

relevant here, Proposition 21 created the gang-murder special 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

7

circumstance, codified at section 190.2(a)(22). (People v. 

Shabazz (2006) 38 Cal.4th 55, 65.) Section 190.2(a)(22)

provides: “The penalty for a defendant who is found guilty of 

murder in the first degree is death or imprisonment in the state 

prison for life without the possibility of parole if one or more of 

the following special circumstances has been found under 

Section 190.4 to be true: [¶] . . . [¶] (22) The defendant 

intentionally killed the victim while the defendant was an active 

participant in a criminal street gang, as defined in subdivision 

(f) of Section 186.22, and the murder was carried out to further 

the activities of the criminal street gang.” By its terms, 

Proposition 21 established a new penalty for murder committed 

by an active participant in a criminal street gang in furtherance 

of the gang’s activities, while relying on an existing statutory 

provision — section 186.22(f) — to define “criminal street gang.” 

An uncodified provision of Proposition 21 states that the 

provisions of the initiative “shall not be amended by the 

Legislature except by a statute passed in each house by rollcall 

vote entered in the journal, two-thirds of the membership of 

each house concurring, or by a statute that becomes effective 

only when approved by the voters.” (Voter Information Guide, 

Primary Elec., supra, text of Prop. 21, § 39, p. 131.) Assembly 

Bill 333 did not receive two-thirds support in either house (Sen. 

Daily J. (Sept. 1, 2021) p. 2284 [25 of 40 members voted in favor]; 

Assem. Daily J. (Sept. 8, 2021.) p. 2927 [41 of 80 members voted 

in favor]; see Cal. Const., art. IV, § 2, subd. (a)(1)–(2)), nor was 

the bill submitted to the voters for approval. The Attorney 

General argues that Assembly Bill 333’s amendment of section 

186.22, incorporated by reference into section 190.2(a)(22), 

unconstitutionally amends Proposition 21 because the voters 

intended the enhanced punishment of death or life without 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

8

parole to apply to gang murders as defined at the time 

Proposition 21 was enacted. 

Although Proposition 21 amended section 186.22 by

increasing the punishment of certain enhancements (§ 186.22, 

subds. (b), (c), (d)) and adding predicate offenses in determining 

“a pattern of criminal gang activity” (id., subd. (e)), the 2000 

initiative did not amend section 186.22(f)’s definition of 

“criminal street gang” and instead technically reenacted it 

without substantive change. (See County of San Diego v. 

Commission on State Mandates (2018) 6 Cal.5th 196, 209–210

[“Statutory provisions that are not actually reenacted and are 

instead considered to ‘ “have been the law all along” ’ [citation] 

cannot fairly be said to be part of a ballot measure”]; Gov. Code, 

§ 9605.) It follows that the Legislature is free to revise section 

186.22(f) independent of the supermajority requirement in 

Proposition 21 itself unless the reenacted provision “is integral 

to accomplishing the electorate’s goals in enacting the initiative 

or other indicia support the conclusion that voters reasonably 

intended to limit the Legislature’s ability to amend that part of 

the statute.” (County of San Diego, at p. 214; see also Lee, supra,

81 Cal.App.5th at p. 242, rev.gr.; cf. Cal. Const., art. II, § 10, 

subd. (c); Voter Information Guide, Primary Elec., supra, text of 

Prop. 21, § 39, p. 131.)

The Attorney General argues that applying Assembly Bill 

333’s amendment to section 186.22(f) to a special circumstance 

allegation would frustrate the voters’ intent to “lock in” the 

definition of “criminal street gang” as it existed at the time of 

the 2000 election and would “take away” from the purpose of 

Proposition 21. We address these arguments in turn.
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

9

B.

We begin with the text of the initiative statute. We have 

said that “ ‘where a statute adopts by specific reference the 

provisions of another statute, regulation, or ordinance, such 

provisions are incorporated in the form in which they exist at 

the time of the reference and not as subsequently modified, and 

that the repeal of the provisions referred to does not affect the 

adopting statute, in the absence of a clearly expressed intention 

to the contrary.’ ” (Palermo v. Stockton Theatres (1948) 32 

Cal.2d 53, 58–59 (Palermo); see generally Jam v. International

Finance Corp. (2019) 586 U.S. __, __ [139 S.Ct. 759, 769] 

[referring to this principle of statutory construction as the 

“ ‘reference’ canon”].) At the same time, “ ‘there is a cognate 

rule . . . to the effect that where the reference is general instead 

of specific, such as a reference to a system or body of laws or to 

the general law relating to the subject in hand, the referring 

statute takes the law or laws referred to not only in their 

contemporary form, but also as they may be changed from time 

to time . . . .’ ” (Palermo, at p. 59.)

While Palermo sets forth the general rule above, it also 

makes clear that the presence or absence of language referring 

specifically to a statutory or regulatory provision is not 

necessarily dispositive. At issue in Palermo was the California 

Alien Land Act (Stats. 1921, p. lxxxiii, as amended by Stats. 

1923, p. 1021), which referred to “ ‘ “any treaty now existing” ’ ” 

at the time of the act’s enactment by the electorate. (Palermo, 

supra, 32 Cal.2d at p. 59.) Palermo reasoned that “in view of the 

fact that there is grave doubt whether our Legislature could 

constitutionally delegate to the treaty-making authority of the 

United States the right and power thus directly to control our 

local legislation with respect to future acts [citations], we are 
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Opinion of the Court by Liu, J.

10

constrained to hold that the reference is specific and not 

general’ ” (id. at pp. 59–60), even though the act did not refer to 

any specific treaty. We have observed that “[s]everal modern 

decisions have applied the Palermo rule, but none have done so 

without regard to other indicia of legislative intent.” (In re 

Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10 (Jovan B.); see id. at 

p. 816 [“ ‘the determining factor will be . . . legislative intent’ ”].)

Our application of the Palermo rule in Jovan B. is 

instructive. In that case, we considered legislation that

incorporated by reference a provision of the Uniform 

Determinate Sentencing Act (§ 1170 et seq.), commonly referred 

to as the determinate sentencing law (DSL), into section 726 of 

the Welfare and Institutions Code as a basis for calculating a 

juvenile’s maximum time of confinement or commitment. The 

question was whether the Legislature intended to lock in the 

provisions of the DSL in effect at the time. (Jovan B., supra, 6 

Cal.4th at pp. 815–816.) We concluded that it did not and held 

that a juvenile’s maximum time of confinement or commitment 

takes into account enhanced penalties incorporated into the 

DSL after Welfare and Institutions Code section 726 was 

enacted. (Jovan B., at pp. 816, 820.) We explained that 

although the statute referred to two specific provisions of the 

DSL (§ 1170, subd. (a)(2) and § 1170.1, subd. (a)) those 

provisions merely “stated the general rule that when sentencing 

a felon to prison, the court must impose either the upper, 

middle, or lower term provided for the offense at issue, plus ‘any 

other . . . additional term’ required or permitted by law in the 

individual case.” (Jovan B., at p. 818.) “Thus, in the language 

of Palermo, supra, 32 Cal.2d 53, 58–59, Welfare and Institutions 

Code section 726’s reference to Penal Code sections 1170, 

subdivision (a)(2) and 1170.1, subdivision (a) is not a ‘specific 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

11

reference [to] the provisions of another statute,’ but rather is a 

‘general’ reference ‘to a system or body of laws.’ ” (Jovan B., at

p. 819.)

Jovan B. went on to consider the purpose of the 

amendment of Welfare and Institutions Code section 726, which 

“states a broad general rule that the ‘maximum term of 

imprisonment’ for juvenile confinement purposes includes 

‘enhancements’ if they are pled and proven.” (Jovan B., supra, 

6 Cal.4th at p. 819.) “The obvious purpose . . . was ‘to treat adult 

and juvenile offenders on equal footing as far as the [maximum] 

duration of their incarceration is concerned’ [citation], whatever 

that period might be at the moment.” (Ibid.) We concluded: 

“The Legislature cannot have anticipated that in order to 

preserve this equality over time, it would be forced to 

amend section 726 each and every time it altered the DSA.” 

(Ibid.) In light of this determination, we held that the juvenile 

was subject to the special allegation under Penal Code section 

12022.1 that he had committed the offense in question while out 

of custody pending trial on a prior petition, even though that 

provision of the Penal Code was enacted five years after Welfare 

and Institutions Code section 726. (Jovan B., at pp. 807–808, 

815.) 

Here, as in Jovan B., the words of the incorporating 

statute “do not make clear whether it contemplates only a timespecific incorporation.” (Jovan B., supra, 6 Cal.4th at p. 816.) 

The initiative’s uncodified findings and declarations state: 

“Gang-related crimes pose a unique threat to the public because 

of gang members’ organization and solidarity. Gang-related 

felonies should result in severe penalties. Life without the 

possibility of parole or death should be available for murderers 

who kill as part of any gang-related activity.” (Voter 
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Opinion of the Court by Liu, J.

12

Information Guide, Primary Elec., supra, text of Prop. 21, § 2, 

subd. (h), p. 119.) To that end, the electorate chose to impose a 

specific punishment for gang-related murder while relying on 

the generally applicable definition of “criminal street gang” in 

section 186.22(f). The voters gave no indication in the statute 

that they intended to adopt the definition of “criminal street 

gang” in effect at the time. Like the statutory references in 

Jovan B., the reference to section 186.22(f)’s definition of 

“criminal street gang” in Proposition 21 is readily understood as 

a reference “to the general law relating to the subject in hand,” 

and as such, “the referring statute takes the law . . . referred to 

not only in [its] contemporary form, but also as [it] may be 

changed from time to time.” (Palermo, supra, 32 Cal.2d at p. 59.)

The Attorney General argues that the provisions at issue 

in Jovan B. are “materially different” from those at issue here 

because Proposition 21 refers “to a specific code section and 

subdivision defining a particular term” in contrast to the 

“general incorporation of an entire body or system of laws as in 

Jovan B.” But section 186.22(f) sets forth the definition of 

“criminal street gang” that is applied throughout the STEP Act 

and other parts of the Penal Code. For example, the general 

definition of “ ‘[o]rganized crime’ ” in section 186.2, subdivision 

(d) was amended in 1996 to “also mean[] crime committed by a 

criminal street gang, as defined in” section 186.22(f). (Stats.

1996, ch. 844, § 1, p. 4465.) The penalty for knowingly 

supplying, selling, or giving possession or control of a firearm

with the knowledge that the person will use it to commit a felony 

for the benefit of a gang, enacted in 1992, also relies on the 

definition of “criminal street gang” in section 186.22(f). 

(§ 186.28, subd. (a)(1); see Stats. 1992, ch. 370, § 1, p. 1405.) So, 

too, does the provision for motor vehicle forfeiture when a 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

13

member of a criminal street gang is convicted of the unlawful 

possession of a firearm while present in a vehicle, as amended 

in 1993. (§ 246.1, subd. (a); see Stats. 1994, 1st Ex. Sess., ch. 33, 

§ 1, p. 8659.) Since 1994, the Welfare and Institutions Code has 

also relied on section 186.22 to define “criminal street gang” in 

providing for information-sharing among “members of a juvenile 

justice multidisciplinary team engaged in the prevention, 

identification, and control of crime, including, but not limited to 

criminal street gang activity.” (Welf. & Inst. Code, § 830.1; see 

Stats. 1994, 1st Ex. Sess., ch. 24, § 1, p. 8597.) Each of these 

provisions was in place prior to the enactment of Proposition 21, 

and we presume the voters were aware of the generally 

applicable nature of section 186.22(f)’s definition of “criminal 

street gang” when they enacted Proposition 21. (Professional 

Engineers in California Government v. Kempton (2007) 40 

Cal.4th 1016, 1048 (Professional Engineers) [“The voters are 

presumed to have been aware of existing laws at the time the 

initiative was enacted.”].)

Of course, it is the electorate’s prerogative to give the term 

“criminal street gang” a fixed meaning if it chooses, regardless 

of how the Legislature may subsequently define the term. But

the voters who enacted Proposition 21 did not specify that the 

cross-reference to section 186.22(f) was intended to lock in the 

contemporary definition, and this omission is particularly

salient in light of other aspects of the same enactment that did 

just that. 

Sections 14 and 16 of Proposition 21 amended portions of 

the existing “Three Strikes Law.” Section 14 added section 

667.1 to the Penal Code: “Notwithstanding subdivision (h) of 

Section 667, for all offenses committed on or after the effective 

date of this act, all references to existing statutes in subdivisions 
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Opinion of the Court by Liu, J.

14

(c) to (g), inclusive, of Section 667, are to those statutes as they 

existed on the effective date of this act, including amendments 

made to those statutes by this act.” (Voter Information Guide, 

Primary Elec., supra, text of Prop. 21, § 14, p. 123, italics 

omitted.) Similarly, section 16 added section 1170.125 to the 

Penal Code: “Notwithstanding Section 2 of Proposition 184, as 

adopted at the November 8, 1994 General Election, for all 

offenses committed on or after the effective date of this act, all 

references to existing statutes in Section 1170.12 are to those 

statutes as they existed on the effective date of this act, 

including amendments made to those statutes by this act.” 

(Voter Information Guide, Primary Elec., supra, text of Prop. 21, 

§ 16, p. 124, italics omitted.) 

Sections 14 and 16, by their terms, “change[d] the ‘lock-in’ 

date for determining the existence of qualifying offenses (such 

as violent or serious felonies) under the Three Strikes law. 

Thus, before the passage of Proposition 21, references to existing 

statutes, such as the law defining violent felonies, in Penal Code 

section 667 were ‘to statutes as they existed on June 30, 1993.’ 

(§ 667, subd. (h).) Section 14 of Proposition 21 provides that 

references to existing statutes in Penal Code section 667, for all 

offenses committed on or after the effective date of the initiative, 

are to those statutes as they existed on the effective date of 

Proposition 21 (March 8, 2000), including, but not limited to, 

amendments made to those statutes by this initiative. (§ 667.1.) 

Section 16 of the initiative makes a corresponding change to the 

lock-in date for statutes referenced in Penal Code section 

1170.12. (§ 1170.125.)” (Manduley v. Superior Court (2002) 27 

Cal.4th 537, 574–575.)

The Attorney General says these provisions “were 

necessary to convey the electorate’s intent that sections 667 and 
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Opinion of the Court by Liu, J.

15

1170.12, which Proposition 21 did not directly amend, were to 

implement the initiative’s amendments to other statutes that 

sections 667 and 1170.12 referenced and which Proposition 21 

did amend.” But if the voters’ intent was simply to ensure that 

the cross-referenced list of violent felonies included those 

updated by Proposition 21, then the phrase “including 

amendments made to those statutes by this act” in both section 

14 and section 16 would have sufficed. Instead, the voters 

coupled that directive with a reference to “those statutes as they 

existed on the effective date of this act,” thus ensuring that 

future offenses would be classified in accordance with the 

scheme then existing. The Attorney General’s explanation of 

sections 14 and 16 does not account for why those provisions are 

written as they are.

In People v. Fletcher (2023) 92 Cal.App.5th 1374, 1379–

1382, review granted September 20, 2023, S281282, the Court 

of Appeal held that the narrower definition of “criminal street 

gang” in Assembly Bill 333 cannot be applied to determine what 

constitutes a serious felony for purposes of the Three Strikes 

Law without running afoul of the limits on legislative 

amendment set forth in both Proposition 21 and a 2012 

initiative, Proposition 36 (Prop. 36, as approved by voters, Gen. 

Elec. (Nov. 6, 2012)). We do not decide that issue here. We 

simply observe that the text of Proposition 21 shows the voters 

understood that cross-referenced statutes may evolve, and they 

knew how to lock in the meaning of a cross-referenced statute. 

Yet the voters chose not to do so with respect to the gang-murder 

special circumstance. (Cf. Pasadena Police Officers Assn. v. City 

of Pasadena (1990) 51 Cal.3d 564, 576 [“When the Legislature 

‘has employed a term or phrase in one place and excluded it in 

another, it should not be implied where excluded.’ ”].) 
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Opinion of the Court by Liu, J.

16

C.

The Attorney General’s primary argument is that 

application of Assembly Bill 333 would frustrate the voters’ 

intent by narrowing the scope of conduct covered by the gangmurder special circumstance, thereby “taking away” from 

Proposition 21. In this context, we have described an 

amendment as “a legislative act designed to change an existing 

initiative statute by adding or taking from it some particular 

provision.” (People v. Cooper (2002) 27 Cal.4th 38, 44.) To 

determine whether Assembly Bill 333 impermissibly takes away 

from Proposition 21, “we must decide what the voters 

contemplated.” (Pearson, supra, 48 Cal.4th at p. 571; see 

Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [“the voters 

should get what they enacted, not more and not less”].)

The Attorney General says application of Assembly Bill

333 here conflicts “with the electorate’s manifest intent to 

substantially augment protections against violent gang crime, 

including by punishing more harshly ‘murderers who kill as part 

of any gang-related activity’ [(Prop. 21, § 2, subd. (h))].” He 

adds, “It would be strange, in light of that intent, to conclude 

that the electorate also understood that the Legislature was free 

to narrow — in potentially significant ways — the scope of the 

protections that Proposition 21 established.” But the phrase 

“any gang-related activity” in Proposition 21 simply begs the 

question of what the voters intended “gang-related activity” to 

mean; it does not indicate that the voters wanted to lock in the 

then-current definition. The voters chose to define the term 

“criminal street gang” by reference to the existing statute,

section 186.22(f), which had been amended several times by the 

Legislature before Proposition 21. In so doing, the voters 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

17

incorporated a definition that they knew was both changeable 

and had been repeatedly subject to change.

As originally enacted, the STEP Act defined “criminal 

street gang” to mean “any ongoing organization, 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 paragraphs (1) to (7), 

inclusive, of subdivision (c), which has a common name or 

common identifying sign or symbol, whose members 

individually or collectively engage in or have engaged in a 

pattern of criminal gang activity.” (Former § 186.22, subd. (d), 

added by Stats. 1988, ch. 1256, § 1, p. 4181.) That definition has 

been amended over the years, both before and after the 

enactment of Proposition 21. After being recodified in 1991 at 

section 186.22(f), the definition of “criminal street gang” was 

expanded in 1993 and 1994 to incorporate additional

enumerated predicate offenses. (See Stats. 1993, ch. 601, § 1, 

p. 3161; Stats. 1993, ch. 1125, § 3, p. 6291; Stats. 1994, ch. 47, 

§ 1, p. 390, eff. Apr. 19, 1994.) Similarly, Proposition 21 added 

two crimes to the list of predicate offenses and incorporated 

those into the definition of “criminal street gang.” (Prop. 21, § 4 

[amending § 186.22, subds. (e), (f)].) The definition of “criminal 

street gang” has continued to evolve after Proposition 21, in 

ways that both expand (see Stats. 2006, ch. 596, § 1, p. 4932

[amending § 186.22(f) to incorporate an expanded list of 

enumerated offenses]) and contract (see Assem. Bill 333) that 

definition. The voters who enacted Proposition 21 knew that the 

definition of “criminal street gang” was changeable (see 

Professional Engineers, supra, 40 Cal.4th at p. 1048 [we 

presume voters are “aware of existing laws at the time the 

initiative was enacted”]), and there is no indication they 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

18

intended to foreclose future changes to the definition or to allow 

only expansion and not contraction of the definition.

Rather, when the voters adopted Proposition 21 twelve 

years after the STEP Act was first enacted, they made clear that 

their purpose was to more severely punish crimes that are gangrelated as opposed to crimes that are not gang-related. As noted, 

the text declares in relevant part that “[g]ang-related felonies 

should result in severe penalties. Life without the possibility of 

parole or death should be available for murderers who kill as 

part of any gang-related activity.” (Voter Information Guide, 

supra, text of Prop. 21, § 2, subd. (h), p. 119.) The proponents of 

Proposition 21 emphasized its focus on stronger penalties for 

criminal activity by gangs and gang members, explaining that 

current law “must be strengthened to require serious 

consequences” in order to protect people “from the most violent 

juvenile criminals and gang offenders.” (Voter Information 

Guide, argument in favor of Prop. 21, p. 48, italics omitted.) 

Proponents further argued that “Proposition 21 ends the ‘slap 

on the wrist’ of current law by imposing real consequences for 

GANG MEMBERS, RAPISTS AND MURDERERS who cannot 

be reached through prevention or education.” (Ibid.) Nowhere 

do the arguments in favor of the initiative suggest that the act 

would redefine or lock in the then-existing definition of 

“criminal street gang” rather than incorporate a definition that 

had been and continued to be subject to change.

The purpose of Assembly Bill 333 further confirms that its 

application here poses no inconsistency with the voters’ intent 

in enacting Proposition 21. By the time the Legislature took up

Assembly Bill 333 in 2021, California had more than three 

decades of experience under the STEP Act. The Legislature was 

motivated by that experience to narrow the definition of 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

19

criminal street gang in order to focus on “true gang-related 

crimes,” having determined that “in practice the original 

definition of a criminal street gang was not narrowly focused on 

punishing true gang-related crimes.” (Lee, supra, 81 

Cal.App.5th at p. 245, rev.gr.) Assembly Bill 333 did not change 

the punishment associated with gang crimes, including the 

punishment of death or life without the possibility of parole for 

individuals convicted of the gang-murder special circumstance. 

Instead, consistent with the intent of Proposition 21 to severely 

punish gang-related crimes, the Legislature in Assembly Bill 

333 “redefined the term ‘criminal street gang’ so as to truly 

target the population of criminals for which an enhanced 

punishment is warranted.” (Lee, at p. 245; see Assem. Com. on 

Public Safety, Analysis of Assem. Bill 333, as amended Mar. 30, 

2021, p. 4 [Assembly Bill 333 “ ‘ensur[es] gang enhancements 

are only used when necessary and fair’ ”].) 

The Attorney General argues that this case is similar to 

People v. Kelly (2010) 47 Cal.4th 1008, where we considered 

whether an aspect of the legislatively enacted Medical 

Marijuana Program (MMP) impermissibly amended the 

Compassionate Use Act enacted by the voters. The 

Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5

et seq.) permitted individuals to possess and cultivate limited 

quantities of marijuana reasonably for “personal medical 

purposes” (id., § 11362.5, subd. (d)) and provided a 

corresponding affirmative defense to criminal prosecution, but 

it did not impose specific quantity limits. (Kelly, at p. 1013.) 

The MMP did not amend the specific statutes enacted by the 

voters, but it did impose other restrictions, including quantity 

limits on the affirmative defense. We found this to be an 

unconstitutional amendment of the voter initiative because the 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

20

Legislature would “take[] away from rights granted by the 

initiative statute,” which “guarantee[d] that a qualified patient 

may possess and cultivate any amount of marijuana reasonably 

necessary for his or her current medical condition.” (Kelly, at

p. 1043.)

Unlike the legislation at issue in Kelly, Assembly Bill 333

does not intrude upon the purpose of Proposition 21. The 

purpose of Proposition 21 was to heighten the penalties for gang 

activity and other violent crimes. While narrowing the 

definition of “criminal street gang,” Assembly Bill 333 does not 

change the punishment for those convicted of the gang-murder 

special circumstance. (See Lee, supra, 81 Cal.App.5th at p. 244, 

rev.gr. [applying Assembly Bill 333 here “does not change the 

punishment for ‘murderers who kill as part of any gang-related 

activity,’ the relevant purpose of Proposition 21”].) 

Gooden, supra, 42 Cal.App.5th 270, is instructive on this 

point. There, the Court of Appeal held that Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill 1437), which amended the 

mens rea for murder was not an impermissible amendment of 

Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 

1978)) (Proposition 7), which increased the punishment for 

murder, or Proposition 115 (Prop. 115, as approved by voters, 

Primary Elec. (June 5, 1990)), which expanded the list of 

predicate offenses for the felony-murder rule. Gooden rejected 

the Attorney General’s argument that Senate Bill 1437 

amended Proposition 7 by taking away from the scope of conduct 

that constitutes murder punishable by the increased 

punishments specified in the initiative. (Gooden, at p. 281.) The 

court emphasized that “the elements of an offense and the 

punishment for an offense plainly are not synonymous.” (Ibid.) 

Whereas Proposition 7 addressed the punishment for murder, 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

21

Senate Bill 1437 addressed only the mental state required to 

commit murder. (Gooden, at p. 282.) “Senate Bill 1437 did not 

address the same subject matter” as Proposition 7; rather, it 

“presents a classic example of legislation that addresses a 

subject related to, but distinct from, an area addressed by an 

initiative.” (Gooden, at p. 282; accord, People v. Nash (2020) 52 

Cal.App.5th 1041, 1059 [“While the class of individuals standing 

convicted of murder may be reduced in light of Senate Bill

No. 1437’s changes to the felony-murder rule and the natural 

and probable consequences doctrine, the legislation does not 

change or take away from the sentences those convicted of 

murder are subject to, which is the mandate of Proposition 7.”].)

Gooden’s distinction between the electorate’s focus on 

punishment and the Legislature’s focus on the substantive 

elements of an offense applies here. The voters who enacted 

Proposition 21 wanted to harshly punish the members and 

activities of a “criminal street gang,” but there is no indication 

that the voters had in mind a fixed meaning of the term. Murder 

committed by “an active participant in a criminal street gang” 

in order to “further the activities of the criminal street gang” 

(§ 190.2(a)(22)) is still punishable by death or life imprisonment 

without the possibility of parole, as provided by Proposition 21. 

The statutory amendments enacted by Assembly Bill 333 ensure 

that punishment is not imposed in other circumstances.

The Attorney General further notes that on several prior 

occasions in which the Legislature amended portions of section 

186.22, the Legislative Counsel advised that the amendment 

required approval by two-thirds of each house. (See Legis. 

Counsel’s Dig., Sen. Bill No. 444 (2005–2006 Reg. Sess.) 4 Stats. 

2005, ch. 482, Summary Dig., p. 235 [“Existing law authorizes 

the Legislature to amend these provisions with a 2/3 vote of each 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

22

house.”]; Legis. Counsel’s Dig., Sen. Bill No. 1222 (2005–2006 

Reg. Sess.) 6 Stats. 2006, ch. 596, Summary Dig., p. 333 [same].) 

But “the Legislature’s views regarding the legality of its 

enactments are not binding on the judiciary.” (People v. Lopez 

(2022) 82 Cal.App.5th 1, 21, fn. 5; see Western Security Bank v. 

Superior Court (1997) 15 Cal.4th 232, 244.) In any event, “ ‘[t]he 

Legislature remains free to address a “ ‘related but distinct 

area’ ” [citations] or a matter that an initiative measure “does 

not specifically authorize or prohibit.” ’ ” (Pearson, supra, 48 

Cal.4th at p. 571.)

Finally, we observe that the Attorney General does not 

argue against application of the amended definition of “criminal 

street gang” in all contexts, but only when applied to the gangmurder special circumstance. On this view, the narrower 

definition of Assembly Bill 333 would apply in all other 

circumstances, effectively making it easier to prove gang 

allegations for the purposes of imposing the death penalty or life 

imprisonment without the possibility of parole, and more 

difficult to impose the less serious consequences that flow from 

violations of section 186.22 itself. As one court has observed, 

“[i]t is difficult to discern a rational reason for such an 

anomalous choice.” (Lee, supra, 81 Cal.App.5th at p. 242, 

rev.gr.)

D.

The Attorney General relies on three cases applying the 

Palermo rule, but none supports a different result here. First, 

the Attorney General says the specific reference in Proposition 

21 to section 186.22(f) is comparable to the specific reference in

Vehicle Code section 23152 to subdivisions (a) through (f) of 

section 835.6 of the Penal Code, which were held to be time-
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

23

specific in People v. Domagalski (1989) 214 Cal.App.3d 1380

(Domagalski). The Attorney General notes that Domagalski 

synthesized the following rule from intervening cases applying 

Palermo: “ ‘Without exception, in each case where a statute, or 

some portion of it, was incorporated by reference to its section 

designation, the court found the reference to be specific and the 

effect was the same as if the adopted statute had been set out 

verbatim in the adopting statute, so that repeal or subsequent 

modification of the statute referred to [and] did not affect the 

adopting statute. Only in those cases where an entire body of 

law relating to a particular subject was adopted by reference did 

the court find the reference to be general so that subsequent 

amendments to the incorporated statute affected the adopting 

statute.’ ” (Domagalski, at pp. 1385–1386, fn. omitted.) 

It is true that Proposition 21, like the statute at issue in 

Domagalski, refers to a specific subdivision of section 186.22 to 

define “criminal street gang.” That subdivision, however, 

contains the entirety of the Penal Code’s definition of “criminal 

street gang,” whereas the referenced subdivisions of section 

835.6 contain only a portion of the potentially relevant 

misdemeanor procedures that the Legislature could have chosen 

to incorporate into Vehicle Code section 23152 but did not. 

Domagalski also confirms that “the determining factor will be 

the legislative intent behind the incorporating statute,” which 

may be assessed through the legislative history. (Domagalski, 

supra, 214 Cal.App.3d at p. 1386.) We endorsed the latter point 

in Jovan B., including Domagalski among other “modern 

decisions” that “have applied the Palermo rule” while noting 

that “none have done so without regard to other indicia of 

legislative intent.” (Jovan B., supra, 6 Cal.4th at p. 816, fn. 10.) 

Domagalski is consistent with our analysis above.
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

24

The same is true of In re Oluwa (1989) 207 Cal.App.3d 439

(Oluwa), in which the Court of Appeal considered whether an 

inmate was subject to the custody credit calculation established 

by the voters through Proposition 7 or whether he was entitled 

to invoke more generous credit provisions later enacted by the 

Legislature. Proposition 7 contained a statement that “ ‘[t]he 

provisions of Article 2.5 (commencing with Section 2930) of 

Chapter 7 of Title 1 of Part 3 of the Penal Code [article 2.5] shall 

apply’ ” in calculating custody credit for sentences like the 

inmate’s in Oluwa. (Oluwa, at p. 442.) As described in Oluwa, 

article 2.5 contained three sections governing custody credit 

calculation at the time Proposition 7 was passed; the custody 

credits at issue were enacted as separate sections of article 2.5. 

(Oluwa, at p. 443.)

The Attorney General points to Oluwa’s statement that 

Proposition 7 was “not a reference to a system or body of laws or 

to the general law relating to the subject at hand,” but rather 

was “a specific and pointed reference to an article of the Penal 

Code . . . at the time Proposition 7 incorporated article 2.5 into 

section 190.” (Oluwa, supra, 207 Cal.App.3d at p. 445.) But 

Oluwa did not rest on a specific reference to article 2.5; rather, 

the court emphasized that the accompanying legislative 

analysis “advised voters that those persons sentenced to 15 

years to life in prison would have to serve a minimum of 10 years 

before becoming eligible for parole” as provided in article 2.5 at 

the time Proposition 7 was adopted. (Oluwa, at p. 445.) Oluwa

explained that allowing inmates like Oluwa to benefit from 

subsequent amendments that would reduce that minimum 

specifically presented to the voters would frustrate the voters’ 

intent and constitute an impermissible legislative amendment 

of the initiative. (Id. at p. 446.) Here, by contrast, we have no 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

25

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.

The Attorney General also cites People v. Anderson (2002) 

28 Cal.4th 767, which concerned the proper interpretation of 

section 26, a statute precluding duress as a defense to crimes 

“punishable with death.” When section 26’s predecessor was 

first enacted, this category of crimes included all forms of 

murder. The defendant argued that because only first degree 

murder with special circumstances is so punishable today, 

duress should constitute a defense to all forms of murder except

first degree murder with special circumstances. (Anderson, at

p. 773.) In other words, the defendant argued that the reference 

to crimes “punishable with death” in section 26 was general and 

therefore evolves with the changing nature of what constitutes 

a capital offense. After considering various indicia of legislative 

intent and the “anomalous[]” and “random results” that would 

result from the defendant’s position, we held that duress is “not 

a defense to any form of murder” and that the reference in 

section 26 was specific. (Anderson, at pp. 775, 780; see id. at

pp. 774–778.) 

The Attorney General says “the reference [in Proposition 

21] is even more specific than the reference at issue in 

Anderson.” This argument appears to draw the wrong lesson 

from Anderson. Anderson illustrates that a statutory reference 

that appears to be general can, upon inquiry into legislative 

intent, turn out to be specific. This case shows the reverse also 

can be true: the statutory reference in section 190.2 may appear 

specific, but the relevant indicia of voter intent show that the 

reference is general. 
PEOPLE v. ROJAS

Opinion of the Court by Liu, J.

26

We conclude that applying Assembly Bill 333’s definition 

of “criminal street gang” to the gang-murder special 

circumstance does not unconstitutionally amend section 

190.2(a)(22). Accepting, as did the Court of Appeal, the Attorney 

General’s concession below that the evidence presented at trial 

is not sufficient to sustain the gang allegations under Assembly 

Bill 333, we vacate the true finding on the gang-murder special 

circumstance in this case.

CONCLUSION

We reverse the judgment below and remand for further 

proceedings consistent with this opinion.

LIU, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Rojas

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 80 Cal.App.5th 542

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S275835

Date Filed: December 18, 2023

__________________________________________________________

Court: Superior

County: Kern

Judge: John W. Lua

__________________________________________________________

Counsel:

Sharon G. Wrubel, under appointment by the Supreme Court, for 

Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, 

Chief Assistant Attorney General, Michael P. Farrell and Susan 

Sullivan Pithey, Assistant Attorneys General, Dana Muhammad Ali, 

Idan Ivri, Louis M. Vasquez, Daniel B. Bernstein, Robert Gezi, 

Amanda D. Cary, William K. Kim and Stacy S. Schwartz, Deputy 

Attorneys General, for Plaintiff and Respondent.

Kent S. Scheidegger and Kymberlee C. Stapleton for the Criminal 

Justice Legal Foundation as Amicus Curiae on behalf of Plaintiff and 

Respondent.

Gregory D. Totten for the California District Attorneys Association as 

Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Sharon G. Wrubel

Attorney at Law

P.O. Box 1240

Pacific Palisades, CA 90272 

(310) 459-4689

Stacy S. Schwartz

Deputy Attorney General

300 South Spring Street

Los Angeles, CA 90013

(213) 269-6099