People v. Valenzuela

• Decision Date: 03 June 2019
• Docket Number: S239122
• Citation: 247 Cal.Rptr.3d 651,441 P.3d 896,7 Cal.5th 415
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis Donicio VALENZUELA, Defendant and Appellant.
• Court: California Supreme Court

7 Cal.5th 415

441 P.3d 896

247 Cal.Rptr.3d 651

The PEOPLE, Plaintiff and Respondent,

v.Luis Donicio VALENZUELA, Defendant and Appellant.

S239122

Supreme Court of California.

June 3, 2019

As Modified June 26, 2019

Stephen P. Lipson and Todd W. Howeth, Public Defenders, Michael C. McMahon, Chief Deputy Public Defender, and William Quest, Deputy Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen, Louis W. Karlin, Susan Sullivan Pithey, Mary Sanchez and Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Cantil-Sakauye, C. J.

In November 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). This initiative reclassified as misdemeanors certain narcotics and theft offenses previously cast as felonies. We granted review in this matter to determine what effect the reduction of a felony conviction to a misdemeanor under Proposition 47 has on a related conviction, subsumed within the same judgment, for the crime of "street terrorism." This gang crime occurs when a "person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity ... willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang." ( Pen. Code, § 186.22, subd. (a).)¹

Here, defendant stole a bicycle and on that basis was convicted of both felony grand theft (§ 487, subd. (c)) and street terrorism. After Proposition 47 came into effect, defendant successfully petitioned to have the grand theft conviction reduced to a misdemeanor. (See § 1170.18, subds. (a), (b), as added by Prop. 47, § 14, approved by voters Gen. Elec. (Nov. 4, 2014).) The resentencing court refused to dismiss defendant’s conviction for street terrorism, even though the theft of the bicycle supplied the "felonious criminal conduct" necessary for the commission of this offense. ( § 186.22, subd. (a).) The Court of Appeal affirmed.

We conclude that defendant is entitled to have his street terrorism conviction dismissed. The reduction of defendant’s grand theft conviction to a misdemeanor through Proposition 47 resentencing established the absence of an essential element of the street terrorism offense — felonious criminal conduct. With this element now absent, in the full resentencing that is to occur under the initiative the court cannot lawfully impose sentence on the street terrorism conviction. We therefore reverse the judgment below.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Manny Ramirez was riding his bicycle in Oxnard when defendant Luis Valenzuela and his friend Timothy Medina waved at him to stop. Ramirez complied. Defendant asked Ramirez where he was from. Defendant also warned Ramirez that he did not like "homies from East Side," a street gang in Santa Barbara.

Ramirez replied that he was not a member of any gang. Defendant nevertheless tried to punch Ramirez. After Ramirez dodged his punch, defendant grabbed Ramirez’s bicycle and said it was now his. Defendant gave Ramirez his address and told him he could come to his house and get the bike back, but Ramirez would need to bring an "older homie from the neighborhood to vouch for him." Medina added, "If you want your bike back, you’ll have to throw down or fight for it."

Ramirez left. He reported the incident to police and gave them defendant’s address. Police recovered the bicycle from that address and arrested defendant. The bicycle was worth approximately $ 200.

In 2014, a jury found defendant guilty of felony grand theft (§ 487, subd. (c) [recognizing the crime of grand theft as having occurred "when the [stolen] property is taken from the person of another"] ) as a lesser offense of the charged crime of robbery (§ 211). The jury also found defendant guilty of street terrorism. ( § 186.22, subd. (a).) Enhancements alleging that defendant committed the felony grand theft offense for the benefit of a criminal street gang ( § 186.22, subd. (b)(1) ) and had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) were found true. The trial court subsequently sentenced defendant to nine years eight months in prison in connection with these crimes and enhancements.²

The electorate approved Proposition 47 while defendant’s appeal was pending. Among its various provisions, this initiative redefined grand theft. At the time of defendant’s crimes, taking property from the person of another was grand theft, a felony offense, regardless of the property’s value. (See § 487, subd. (c).) Section 490.2, subdivision (a), added by Proposition 47, altered this rule. In general, "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($ 950) shall be considered petty theft and shall be punished as a misdemeanor." (§ 490.2, subd. (a).)

The Court of Appeal affirmed the judgment on direct appeal, and this court denied defendant’s petition for review. Defendant then filed a petition with the trial court seeking the reclassification and resentencing of his grand theft felony conviction as misdemeanor petty theft. (See § 1170.18, subd. (a).) In his petition, defendant also asserted that if this conviction was reclassified as a misdemeanor, his conviction for street terrorism must be dismissed because the specific criminal conduct underlying that offense — again, theft of a bike valued at $ 200 — could no longer be regarded as felonious.

The trial court resentenced the theft conviction as a misdemeanor. (See §§ 490.2, subd. (a), 1170.18, subd. (b).) This reduction required the dismissal of the gang enhancement, which adheres only upon conviction of a felony. ( § 186.22, subd. (b)(1).)³ The trial court declined to dismiss the street terrorism conviction, however. The trial court resentenced defendant to seven years eight months in prison. This sentence consisted of the lower term of 16 months on the street terrorism count, doubled to two years eight months because of the prior strike, plus another five-year term for the serious felony enhancement. (See §§ 186.22, subd. (a), 667, subds. (a)(1), (e)(1).)

The Court of Appeal upheld the trial court’s refusal to dismiss the street terrorism conviction.

( People v. Valenzuela (2016) 5 Cal.App.5th 449, 453, 209 Cal.Rptr.3d 860.) According to the appellate court, the fact that Proposition 47 required defendant’s theft conviction to be regarded as "a misdemeanor for all purposes" (§ 1170.18, subd. (k)) upon resentencing was of no consequence to the street terrorism crime, because the gang offense was focused "on the commission rather than the conviction of a felony." ( Valenzuela , at p. 452, 209 Cal.Rptr.3d 860, italics added.) The court summarized, "When Valenzuela stole the bicycle, he engaged in felonious criminal conduct. That is true regardless of his conviction for grand theft and its subsequent reduction to a misdemeanor. The trial court properly declined to set aside his conviction for street terrorism." ( Id ., at p. 453, 209 Cal.Rptr.3d 860.)

We granted defendant’s petition for review.

II. DISCUSSION

Our analysis begins with a review of the pertinent statutes and how they have been construed. We then consider their application to this case. We conclude that defendant’s street terrorism conviction should have been dismissed in the full resentencing that defendant must receive under Proposition 47.

A. Relevant Statutes and Case Law

1. The Crime of Street Terrorism under Section 186.22, Subdivision (a)

The Legislature originally enacted section 186.22 in 1988 as part of the California Street Terrorism Enforcement and Prevention Act, also known as the "STEP Act." (§ 186.20 et seq.) The STEP Act declares that "[i]t is the intent of the Legislature in enacting this [measure] to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs." (§ 186.21, 2d par.)

Although defendant was charged under two different provisions of the STEP Act, only one of these allegations is presently at issue. The relevant crime is set forth in section 186.22, subdivision (a), which provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."

"The gravamen of the substantive offense set forth in section 186.22 [, subdivision] (a) is active participation in a criminal street gang." ( People v. Albillar (2010) 51 Cal.4th 47, 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062.) "[W]ith section 186.22 [, subdivision] (a), the Legislature sought to punish gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang-related." ( Rodriguez , supra , 55 Cal.4th at p. 1138, 150 Cal.Rptr.3d 533, 290 P.3d 1143 (lead opn. of Corrigan, J.), italics omitted.) The essential elements for a conviction under section 186.22, subdivision (a) are: "(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any...