         IN THE SUPREME COURT OF
                CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
               LUIS DONICIO VALENZUELA,
                 Defendant and Appellant.

                            S239122

            Second Appellate District, Division Six
                          B269027

                Ventura County Superior Court
                         2013025724



                         June 3, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,
in which Justices Chin, Liu, Cuéllar and Groban concurred.

Justice Corrigan filed a dissenting opinion.

Justice Kruger filed a dissenting opinion in which Justice
Corrigan concurred.
                  PEOPLE v. VALENZUELA
                            S239122

         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

1
     All subsequent undesignated statutory references are to
the Penal Code.


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


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.


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


      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.

2
      Defendant also pleaded guilty to possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), for which he
received an additional eight-month term.


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


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

3
      Section 186.22, subdivision (b)(1) provides, in pertinent
part, that “any person who is convicted of a felony committed for
the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members,
shall, upon conviction of that felony,” be subject to a custodial
term in addition to the one associated with the underlying felony
offense. This enhancement “punishes gang-related conduct, i.e.,
felonies committed with the specific intent to benefit, further, or
promote the gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125,
1138 (lead opn. of Corrigan, J.) (Rodriguez).)


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


(2016) 5 Cal.App.5th 449, 453.) 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, 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.)
     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,



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


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.) “[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 (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 felonious criminal
conduct by members of that gang.” (Albillar, at p. 56.)
     The third element of the street terrorism crime is most
squarely at issue here. In analyzing this component of the


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


crime, our prior case law has articulated several principles
relevant to the present case. “[M]isdemeanor conduct . . . cannot
constitute ‘felonious criminal conduct’ within the meaning of”
this element. (People v. Lamas (2007) 42 Cal.4th 516, 524
(Lamas).) Furthermore, liability under this provision is limited
“to those who promote, further, or assist a specific felony
committed by gang members and who know of the gang’s
pattern of criminal gang activity.” (People v. Castenada (2000)
23 Cal.4th 743, 749, italics added.) In other words, the provision
“requir[es] the promotion or furtherance of specific conduct of
gang members and not inchoate future conduct.” (Rodriguez,
supra, 55 Cal.4th at p. 1137 (lead opn. of Corrigan, J.).)
         2. Relevant Provisions of Proposition 47
      Proposition 47 altered prior law in several important
respects. Among these changes, the initiative amended various
provisions of the Health and Safety Code and the Penal Code to
reclassify as misdemeanors certain narcotics and theft offenses
that had been denominated either felonies or “wobblers” (i.e.,
crimes capable of being charged as either felonies or
misdemeanors). The initiative created a procedure through
which persons serving a sentence for a qualifying felony may
petition to have the conviction reclassified as a misdemeanor.
(§ 1170.18, subds. (a), (b).) Persons convicted of certain offenses
are ineligible for resentencing. (Id., subd. (i).) An eligible
petitioner shall have his or her sentence recalled and be
resentenced to a misdemeanor, “unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.” (Id., subd.
(b).) Through a separate procedure, a person who already has
completed his or her sentence for a qualifying felony also may



                                  7
                      PEOPLE v. VALENZUELA
              Opinion of the Court by Cantil-Sakauye, C. J.


have the underlying conviction redesignated as a misdemeanor.
(Id., subds. (f)-(h).)
      Section 1170.18 further provides that “[a] felony
conviction that is recalled and resentenced . . . or designated as
a misdemeanor . . . shall be considered a misdemeanor for all
purposes, except that resentencing shall not permit that person
to own, possess, or have in his or her custody or control a firearm
or prevent his or her conviction under [various statutes
prohibiting possession of a firearm under certain
circumstances].” (§ 1170.18, subd. (k).) An uncodified provision
of the measure provides that Proposition 47 “shall be liberally
construed to effectuate its purposes.” (Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18, p. 74; see also id.,
§ 15, p. 74 [providing that the initiative “shall be broadly
construed to accomplish its purposes”].)
         3. Prior Interpretation of Proposition 47
      Proposition 47 has generated many interpretive issues for
this court. (See, e.g., People v. Lara (2019) 6 Cal.5th 1128;
People v. Franco (2018) 6 Cal.5th 433; In re C.B. (2018) 6 Cal.5th
118; People v. Gonzales (2018) 6 Cal.5th 44; People v. Buycks
(2018) 5 Cal.5th 857 (Buycks); People v. Martinez (2018)
4 Cal.5th 647; People v. DeHoyos (2018) 4 Cal.5th 594; People v.
Page (2017) 3 Cal.5th 1175; People v. Valencia (2017) 3 Cal.5th
347; People v. Romanowski (2017) 2 Cal.5th 903.) In construing
the initiative, “we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681,
685.) As a law adopted by the voters, “their intent governs.”
(People v. Jones (1993) 5 Cal.4th 1142, 1146.) In ascertaining
that intent, “we turn first to the language of the statute, giving
the words their ordinary meaning.” (People v. Birkett (1999)


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


21 Cal.4th 226, 231.) This language is interpreted in the context
of the statute as a whole, as well as the overall statutory scheme.
(Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.)
      A recent decision by this court, Buycks, supra, 5 Cal.5th
857, addressed issues similar to the one presented in this case.
In Buycks, we considered the validity of three sentence
enhancements or criminal convictions after the defendants to
whom they pertained had secured the reduction of related felony
convictions to misdemeanors through the Proposition 47
petition process. One defendant, Buycks, sought (in connection
with a Proposition 47 resentencing) the dismissal of an “on-bail”
enhancement imposed under section 12022.1, subdivision (b),
which provides in relevant part that “[a]ny person arrested for
a secondary [felony] offense that was alleged to have been
committed while that person was released from custody on a
primary [felony] offense shall be subject to a penalty
enhancement . . . .”   (Buycks, at pp. 872-873.)       A second
defendant in Buycks, Laura Valenzuela, pursued similar relief
on direct appeal for a one-year term enhancement imposed
under section 667.5, subdivision (b), applicable “for each prior
separate prison term or county jail term imposed under
subdivision (h) of Section 1170 or when the sentence is not
suspended for any felony.” (Buycks, at pp. 873-874.) This
enhancement, which derived from an earlier conviction for
receiving stolen property (§ 496), was imposed in a case in which
Valenzuela had been convicted of several other felonies,
including one (a violation of Health & Saf. Code § 11377) that
was among the narcotics crimes reclassified as misdemeanors
by Proposition 47, and which Valenzuela had successfully
petitioned to have reclassified as a misdemeanor. (Buycks, at
pp. 873-874.) The third defendant, Guiomar, had failed to


                                  9
                     PEOPLE v. VALENZUELA
             Opinion of the Court by Cantil-Sakauye, C. J.


appear in court on a felony charge of possessing a controlled
substance (Health & Saf. Code, § 11350), leading to another
criminal charge. (Buycks, at pp. 874-875.) The statute under
which Guiomar was charged with failing to appear provides,
“Every person who is charged with or convicted of the
commission of a felony, who is released from custody on bail, and
who in order to evade the process of the court willfully fails to
appear as required, is guilty of a felony.” (Pen. Code, § 1320.5.)
Guiomar later had his felony drug conviction reduced to a
misdemeanor through the Proposition 47 petition process, and
on that basis sought to have his conviction for failing to appear
set aside. (Buycks, at p. 875.)
      In Buycks, supra, 5 Cal.5th at page 883, we concluded that
Proposition 47’s directive that a resentenced or redesignated
offense “shall be considered a misdemeanor for all purposes”
(§ 1170.18, subd. (k)) applied both prospectively and in cases in
which the judgment was not yet final at the time the initiative
was approved by the electorate. The latter determination
involved application of the limited retroactivity rule we
articulated in In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).
(Buycks, at p. 883.) Through application of this rule, a
defendant who successfully invokes the Proposition 47
resentencing process may secure the dismissal or other
appropriate treatment of an enhancement or crime subsumed
within a judgment that was not yet final on November 5, 2014
(the effective date of Prop. 47), when that allegation is premised
on the existence of a felony conviction that has been reduced to
a misdemeanor. (See Buycks, at pp. 889-891.)
      We also determined in Buycks, supra, 5 Cal.5th 857, that
the “full resentencing rule” (id., at p. 893) applies to defendants
who qualify for resentencing under the initiative (id., at pp. 893-

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


895). As more commonly applied, the full resentencing rule
allows a court to revisit all prior sentencing decisions when
resentencing a defendant. (Id., at p. 893; People v. Navarro
(2007) 40 Cal.4th 668, 681 [noting that the rule allows the trial
court to “exercise its sentencing discretion in light of . . .
changed circumstances”].)      For example, when a felony
conviction supplying a principal sentence term is reversed on
appeal and the case returns to the trial court for resentencing,
that court must select another conviction, if it exists, to supply
the new principal term. (See People v. Roach (2014) 247
Cal.App.4th 178, 184-187.)       A court conducting a full
resentencing also may, as appropriate, revisit sentencing
choices such as a decision to stay a sentence (see People v.
Calderon (1993) 20 Cal.App.4th 82, 87-88), to impose an upper
term instead of a middle term (see People v. Burbine (2003) 106
Cal.App.4th 1250, 1256-1259), or to impose concurrent instead
of consecutive sentences (see People v. Cortez (2016) 3
Cal.App.5th 308, 311-317).
       In Buycks, supra, 5 Cal.5th 857, we determined that in a
Proposition 47 resentencing conducted under section 1170.18,
subdivisions (a) and (b), the trial court, “when it resentences on
the eligible felony conviction, must also resentence the
defendant generally and must therefore reevaluate the continued
applicability of any enhancement based on a prior felony
conviction.” (Buycks, at p. 894, italics added; cf. People v.
Sifuentes (2011) 195 Cal.App.4th 1410, 1419-1420, disapproved
on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304,
fn. 6.) In other words, in a Proposition 47 resentencing, the trial
court not only must revisit its prior sentencing decisions; it also
must decide whether the factual basis for an enhancement has



                                  11
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             Opinion of the Court by Cantil-Sakauye, C. J.


been abrogated by the redesignation of a felony conviction as a
misdemeanor. (See Buycks, at pp. 893-895.)
      Applying these principles, we concluded in Buycks, supra,
5 Cal.5th 857 that Buycks and Laura Valenzuela — but not
Guiomar — were entitled to relief. (Id., at pp. 896-897.)
Relevant to Buycks, whose judgment of conviction had already
become final at the time Proposition 47 came into effect, we
observed that imposition of the on-bail enhancement under
section 12022.1, subdivision (b) requires convictions for two
felonies: the felony offense for which the defendant was on bail
or released on his or her own recognizance (i.e., the primary
offense) as well as the felony offense committed while the
defendant was free on bail or his or her own recognizance (the
secondary offense). (Buycks, at p. 890; but cf. In re Jovan B.
(1993) 6 Cal.4th 801, 814 [regarding the enhancement as
applicable in juvenile wardship proceedings, even though
juvenile adjudications are not “ ‘convictions’ ”].) Reduction of
Buycks’s primary felony conviction to a misdemeanor through
Proposition 47 therefore negated a necessary premise for the on-
bail enhancement. This development meant that in a full
resentencing, no sentence associated with the allegation could
properly be imposed upon him. (Buycks, at pp. 890-891, 893-
895.)
      A somewhat similar analysis applied to Laura Valenzuela
in Buycks, supra, 5 Cal.5th 857. We observed there that
although the enhancement under section 667.5, subdivision (b)
does not expressly demand a felony conviction, its terms imply
that such a conviction is necessary for the enhancement to
attach. (Buycks, at p. 889.) Therefore, we determined that “the
resentencing of [Valenzuela’s] prior underlying felony conviction
to a misdemeanor conviction negates an element required to

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


support [the] section 667.5 one-year enhancement.” (Ibid.)
Unlike the judgment affecting Buycks, the judgment involving
Valenzuela’s narcotics offense and related enhancement was not
yet final when Proposition 47 came into effect. (Buycks, at
pp. 893-894.) This difference in timing meant that the limited
retroactivity principle of Estrada, supra, 63 Cal.2d 740 inured
to Valenzuela’s benefit; she did not have to rely exclusively on
the full resentencing rule in pursuing relief. (Buycks, at pp. 894-
895, 896.)
      We concluded that the third defendant, Guiomar, was not
entitled to dismissal of his conviction for failing to appear.
(Buycks, supra, 5 Cal.5th at pp. 891-892, 896-897.) Although
Guiomar had successfully petitioned for reduction of his drug-
offense conviction to a misdemeanor, this did not alter the fact
that he had failed to appear on a felony charge. (Id., at p. 892.)
We emphasized that liability under section 1320.5 does not
depend on the defendant having been convicted on the charge
for which he or she had failed to appear. To the contrary, “the
primary purpose of section 1320.5 is to deter the act of jumping
bail and [the statute] requires punishment ‘whether or not the
defendant ultimately is convicted of the charge for which he or
she was out on bail when failing to appear in court as ordered.’ ”
(Buycks, at p. 891, quoting People v. Walker (2002) 29 Cal.4th
577, 583.) Hence, reduction of Guiomar’s felony narcotics
conviction to a misdemeanor through Proposition 47
resentencing did not remove any element of the failure to appear
conviction that he sought to have dismissed.4

4
     A broad analogy might be drawn to a defendant who
escapes while incarcerated for a crime later found to be



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


      B. Defendant Is Entitled To Dismissal of His Street
         Terrorism Conviction in a Full Resentencing
      There is no dispute that, in accordance with section
1170.18, subdivision (a), the resentencing court appropriately
reclassified defendant’s grand theft conviction (§ 487, subd. (c))
as misdemeanor petty theft. Nor is there any question that
defendant was entitled to be resentenced consistently with that
redesignation. The issue before us is whether, in light of this
adjustment, defendant’s conviction for street terrorism can still
stand. We conclude that it cannot.
      As previously described, an essential element of the street
terrorism offense is that the defendant must have “promote[d],
further[ed], or assist[ed] in any felonious criminal conduct” by
gang members. (§ 186.22, subd. (a).) This element “requir[es]
the promotion or furtherance of specific conduct of gang
members” (Rodriguez, supra, 55 Cal.4th at p. 1137 (lead opn. of
Corrigan, J.)), and the conduct involved must constitute a felony
— as opposed to a misdemeanor, or no crime at all (Lamas,
supra, 42 Cal.4th at p. 524).             Consistent with these
interpretations of the statute, the jury instruction for the street
terrorism offense requires the finder of fact to determine, as an
element of the crime, that a specific felony was in fact committed
by gang members. (CALCRIM No. 1400.)
      In this case, there is no dispute that the theft of Ramirez’s
$200 bicycle — the same conduct that gave rise to defendant’s
conviction for grand theft — constituted the felonious criminal


unconstitutional. We made clear in Estrada, supra, 63 Cal.2d
740 that the subsequent invalidation of the underlying offense
would not bar such a defendant from being convicted for escape.
(Id., at p. 750.)


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


conduct involved with his conviction for street terrorism. In
light of defendant’s Proposition 47 resentencing, that theft can
no longer be regarded as felonious. (§§ 490.2, 1170.18, subd. (b).)
The People do not explain how defendant’s underlying conduct
could be regarded as felonious under a different theory, at least
in a way not already rejected by the jury (which declined to
convict defendant of robbery). The reduction of defendant’s
felony grand theft conviction to a misdemeanor therefore
established the absence of an essential element of the street
terrorism crime. (See Buycks, supra, 5 Cal.5th at pp. 889-890.)
It follows that the street terrorism charge should have been
dismissed at defendant’s full resentencing. (See id., at pp. 888
[determining that, except for firearm possession offenses
expressly excluded under § 1170.18, subd. (k), Prop. 47’s
“mandate to reduce penalties for a distinct class of narcotics and
larceny-related offenses otherwise fully extends to
enhancements and subsequent offenses alleged with those
offenses”], 894-895.)
      The People contend that even if defendant’s conviction for
grand theft became a “misdemeanor for all purposes” upon
reclassification and resentencing (§ 1170.18, subd. (k)), this
adjustment has no effect on his conviction for street terrorism.
The People stress that a conviction for street terrorism requires
“felonious criminal conduct” (§ 186.22, subd. (a)), not necessarily
a conviction for the underlying felony.5 We do not disagree with

5
       Thus, for example, a gang member who promotes,
furthers, or assists a felony committed by other gang members
might be convicted of street terrorism without also being
charged with, let alone convicted of, the offense he or she
facilitated. In such a case, however, the finder of fact still must



                                  15
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              Opinion of the Court by Cantil-Sakauye, C. J.


the latter point, but do not regard it as decisive here. Given the
facts of this case, the reduction of defendant’s theft conviction to
a misdemeanor establishes that he cannot be regarded as
having engaged in felonious criminal conduct. This essential
element not being present, defendant cannot properly be
resentenced for the street terrorism offense.
      The People further contend that the reduction of
defendant’s grand theft conviction to misdemeanor petty theft
does not alter the fact that he committed felonious criminal
conduct as it was denominated in 2013. They take the position
that the classification of defendant’s conduct at that time
controls. But neither the gravamen of the street terrorism crime
nor any indicia of legislative intent associated with it convey
that the felonious nature of the criminal conduct necessary for
commission of this offense is fixed for all time when the crime
takes place. It is more reasonable, in light of the limited
retroactivity rule of Estrada, supra, 63 Cal.2d 740, which
presumes that ameliorative changes in the criminal laws were
intended to be applied to cases with nonfinal judgments, to
conclude that the felonious character of this conduct is
susceptible to reassessment as may be appropriate in light of
pertinent developments affecting the criminal codes, so long as
the judgment is nonfinal or validly reopened.
      In this respect, the felonious character of the criminal
conduct involved with street terrorism is little different from the
erstwhile felonious nature of the prior convictions involved with
the enhancements we addressed in Buycks, supra, 5 Cal.5th 857.
There, we emphasized that we were required to reassess the


determine that the defendant promoted, furthered, or assisted
the commission of a specific felony.


                                   16
                      PEOPLE v. VALENZUELA
              Opinion of the Court by Cantil-Sakauye, C. J.


continued applicability of these enhancements at the time of
resentencing. (Id., at p. 894.) Similarly here, the reclassification
of defendant’s conviction for grand theft as misdemeanor petty
theft pursuant to the Proposition 47 petition process imparts
that an essential element to defendant’s conviction for street
terrorism is now absent. Defendant is therefore no longer
susceptible to being resentenced for the street terrorism offense.
      Lastly, the People liken the facts of this case to those
associated with defendant Guiomar in Buycks, supra, 5 Cal.5th
857, to whom we denied relief. But section 1320.5, the “failure
to appear” statute under which Guiomar was convicted, is
materially different from the street terrorism crime involved
here. A felonious failure to appear — involving a willful evasion
of the court’s process in what had been denominated, if not yet
proved to be, a felony matter — is not, as a matter of logic or
gravity, affected by the reduction of a subsequent felony
conviction in the matter in which defendant absented himself or
herself.   Critically, reclassification of a felony conviction
associated with a crime for which a defendant failed to appear
does not function to negate an essential element of section
1320.5 offense. (See Buycks, at p. 891.) In this case, as
previously described, the reduction of defendant’s grand theft
conviction to misdemeanor petty theft establishes the absence of
an essential element of defendant’s conviction for street
terrorism, to wit, that defendant promoted, furthered, or
assisted specific felonious criminal conduct.
                         III. DISPOSITION
      Given the circumstances before us, defendant cannot
properly be resentenced for the street terrorism offense.
Instead, this conviction must be dismissed in his Proposition 47



                                   17
                     PEOPLE v. VALENZUELA
             Opinion of the Court by Cantil-Sakauye, C. J.


resentencing.6 The judgment of the Court of Appeal is reversed.
We remand this matter for further proceedings consistent with
our opinion.
                                       CANTIL-SAKAUYE, C. J.


We Concur:
CHIN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.




6
      Our determination that defendant is entitled to a full
resentencing at which the reduction of his grand theft conviction
to misdemeanor petty theft will lead to the dismissal of his
street terrorism conviction should not be read to imply a
separate, negative holding: that a different defendant, convicted
only of street terrorism before Proposition 47 came into effect,
cannot obtain relief under the initiative even though the
criminal conduct he or she promoted, furthered, or assisted is no
longer felonious. We have no occasion here to address those
circumstances, and leave for another day what remedies, if any,
are available to a defendant in that position.


                                  18
                  PEOPLE v. VALENZUELA
                           S239122


            Dissenting Opinion by Justice Corrigan


      I respectfully dissent. In enacting Proposition 47, the
electorate expressed its intent to reduce punishment for
nonserious theft and drug offenses. Defendant’s crime of
participating in a criminal street gang under Penal Code1
section 186.22, subdivision (a) does not constitute a nonserious
theft offense falling within the ambit of that provision.
      “Enacted in 2014, Proposition 47, known as the Safe
Neighborhoods and Schools Act . . . , ‘reduc[ed] penalties for
certain theft and drug offenses by amending existing statutes.’
[Citation.] ‘One of Proposition 47’s primary purposes is to
reduce the number of nonviolent offenders in state prisons,
thereby saving money and focusing prison on offenders
considered more serious under the terms of the initiative.’ ”
(People v. Adelmann (2018) 4 Cal.5th 1071, 1075.) The Voter
Information Guide explained that Proposition 47 “reduces
penalties for certain offenders convicted of nonserious and
nonviolent property and drug crimes. The measure also allows
certain offenders who have been previously convicted of such
crimes to apply for reduced sentences.” (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis.
Analyst, p. 35, italics added.)



1
     Subsequent statutory references are to the Penal Code
unless otherwise noted.


                               1
                     PEOPLE v. VALENZUELA
                       Corrigan, J., dissenting


      The resentencing statute, section 1170.18, subdivision (a),
provides: “A person who, on November 5, 2014, was serving a
sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under the
act that added this section (‘this act’) had this act been in effect
at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in
his or her case to request resentencing in accordance with
Sections 11350, 11357, or 11377 of the Health and Safety Code,
or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code,
as those sections have been amended or added by this act.”
      Defendant’s offense, street terrorism under section 186.22,
subdivision (a), is not listed in section 1170.18, subdivision (a).
Nevertheless, he argues he is entitled to resentencing “in
accordance with” section 490.2, which defines as misdemeanor
petty 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) . . . .” (§ 490.2, subd.
(a).) The majority agrees: “In this case, there is no dispute that
the theft of Ramirez’s $200 bicycle — the same conduct that gave
rise to defendant’s conviction for grand theft — constituted the
felonious criminal conduct involved with his conviction for street
terrorism. In light of defendant’s Proposition 47 resentencing,
that theft can no longer be regarded as felonious. (§§ 490.2,
1170.18, subd. (b).)” (Maj. opn., ante, at pp. 14-15.)
       Although we have reasoned that offenses not listed in
section 1170.18 may be resentenced in accordance with section
490.2, we have been careful to note that such offenses are, in
fact, theft offenses. For example, People v. Page (2017) 3 Cal.5th
1175 concluded a defendant convicted under Vehicle Code
section 10851, subdivision (a), which criminalizes the unlawful

                                  2
                      PEOPLE v. VALENZUELA
                        Corrigan, J., dissenting


taking or driving of a vehicle, would be entitled to Proposition
47 resentencing if his conviction was based upon vehicle theft.
“[W]hile Vehicle Code section 10851 does not expressly
designate the offense as theft, the conduct it criminalizes
includes theft of a vehicle . . . . And to the extent vehicle theft is
punished as a felony under section 10851, it is, in effect, a form
of grand, rather than petty, theft.” (Page, at p. 1186.) Thus,
“obtaining an automobile worth $950 or less by theft constitutes
petty theft under section 490.2 and is punishable only as a
misdemeanor, regardless of the statutory section under which
the theft was charged.” (Id. at p. 1187.) Similarly, People v.
Romanowski (2017) 2 Cal.5th 903 concluded that theft of access
card information (Pen. Code, § 484e, subd. (d)) was subject to
resentencing under Proposition 47 because it was a form of theft:
“[W]e must presume that voters were at least aware that the
Penal Code sets out ‘grand theft’ crimes that included theft of
access card account information. (§ 484e.) The text and
structure of Proposition 47 convey that section 490.2’s clear
purpose was to reduce punishment for crimes of ‘obtaining any
property by theft’ that were previously punished as ‘grand theft’
when the stolen property was worth less than $950. And section
484e confirms that theft of access card information is one of
those crimes.” (Romanowski, at p. 909.)
      The majority here equates street terrorism with a
nonserious theft offense subject to section 490.2. Section 186.22,
subdivision (a) applies to “[a]ny 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 . . . .” First,
the Penal Code specifically lists a violation of section 186.22 as


                                   3
                     PEOPLE v. VALENZUELA
                       Corrigan, J., dissenting


a serious felony. (§ 1192.7, subd. (c)(28).) Proposition 47 was
represented to the voters as applying only to “nonserious and
nonviolent property and drug crimes.” (Voter Information
Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst,
p. 35.) Applying its ameliorative provisions to a serious felony
would seem contrary to the electorate’s intent.
      Second, a violation of section 186.22, subdivision (a) is not
a theft offense. “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.)      Section 186.22, subdivision (a) “reflects the
Legislature’s carefully structured endeavor to punish active
participants for commission of criminal acts done collectively
with gang members.” (People v. Rodriguez (2012) 55 Cal.4th
1125, 1139 (lead opn. of Corrigan, J.) (Rodriguez).) Thus, unlike
vehicle theft in Page or theft of access card information in
Romanowski, street terrorism encompasses concerted criminal
conduct beyond mere theft, even if theft is part of the underlying
conduct.
      On this point, two Court of Appeal cases are instructive.
People v. Martin (2018) 26 Cal.App.5th 825 (Martin) concluded
that conspiracy (§ 182, subd. (a)(1)) to commit petty theft was
not subject to Proposition 47 resentencing. Martin noted that
“[t]he courts have long recognized the enhanced dangers of a
conspiracy” (Martin, at p. 836), and reasoned the defendant’s
offense went beyond a mere theft: “The conspiracy in which
respondent was involved was not an ordinary shoplifting
scheme; it involved criminal teamwork.” (Id. at p. 839.) The
defendant conspired to “commit as many petty thefts as she
could get away with” and sell the stolen property overseas. (Id.
at p. 828.) Martin observed, “The potential harm to the public

                                  4
                      PEOPLE v. VALENZUELA
                        Corrigan, J., dissenting


from such a conspiracy was far greater than the harm posed by
ordinary shoplifting.” (Id. at p. 839.) Accordingly, the Court of
Appeal reversed her resentencing under Proposition 47. (See
also People v. Segura (2015) 239 Cal.App.4th 1282, 1284.)
       Similarly, People v. Soto (2018) 23 Cal.App.5th 813
concluded Proposition 47 did not ameliorate a felony conviction
for theft from an elder (§ 368, subd. (d)). Soto observed that
neither Page nor Romanowski “had occasion to consider
Proposition 47 eligibility for what we will call a pure ‘theft-plus’
offense, i.e., one that is not identified as grand theft and requires
additional necessary elements beyond the theft itself. Nothing
in Romanowski or Page suggests that section 490.2 extends to
any course of conduct that happens to include obtaining
property by theft worth less than $950.” (Soto, at p. 822.) Soto
reasoned a contrary conclusion would lead to absurd results,
noting that theft was an included offense of robbery (§ 211), a
violent felony (§ 667.5, subd. (c)(9)), and “[a] robber might take
property by larceny worth less than $950” (Soto, at p. 822). “An
overexpansive reading of Romanowski and Page might construe
that ‘theft-plus’ offense as petty theft under section 490.2. Such
a construction would thwart Proposition 47’s objective to reduce
sentences for nonviolent crimes while shifting spending toward
more serious offenses.” (Id. at pp. 822-823.) Soto concluded:
“Soto was charged with an aggravated form of theft—theft from
an elder victim. We see no way to interpret section 490.2 to
cover Soto’s conviction without converting every ‘theft-plus’
offense involving less than $950 into petty theft.” (Id. at p. 824,
fn. omitted.)
     The reasoning of Martin and Soto applies here.
Defendant’s street terrorism offense went beyond the mere
commission of theft. The jury necessarily found that defendant

                                   5
                     PEOPLE v. VALENZUELA
                       Corrigan, J., dissenting


acted with a fellow gang member and committed their offense to
promote their gang. Just as a conspiracy to commit theft poses
a danger to society beyond the underlying theft, defendant’s
active gang participation likewise posed a danger to society
beyond the underlying theft. As Soto reasoned, nothing in
Proposition 47 suggested an electoral intent to reduce to a
misdemeanor any and all felonies that may include some aspect
of theft.
      In passing the California Street Terrorism Enforcement
and Prevention Act (§ 186.20 et seq.), the Legislature declared
“that the State of California is in a state of crisis which has been
caused by violent street gangs whose members threaten,
terrorize, and commit a multitude of crimes against the peaceful
citizens of their neighborhoods.           These activities, both
individually and collectively, present a clear and present danger
to public order and safety and are not constitutionally
protected.” (§ 186.21.) The majority’s treatment of defendant’s
street terrorism offense as nothing but a form of theft is at odds
with the important purposes behind both section 186.22,
“enacted in 1988 to combat a dramatic increase in gang-related
crimes and violence” (People v. Prunty (2015) 62 Cal.4th 59, 67),
and with Proposition 47, which was enacted to grant relief to
those convicted of nonserious theft and drug offenses.
       The majority’s reliance on the so-called “ ‘full resentencing
rule’ ” of People v. Buycks (2018) 5 Cal.5th 857 (Buycks) is
misplaced. (Id. at p. 893.) As articulated in In re Estrada (1965)
63 Cal.2d 740, unless otherwise indicated, an “ ‘amendatory
statute lessening punishment is presumed to apply in all cases
not yet reduced to final judgment as of the amendatory statute’s
effective date.’ ” (People v. DeHoyos (2018) 4 Cal.5th 594, 600;
see In re Estrada, at p. 744.) We applied this rule in Buycks to

                                  6
                     PEOPLE v. VALENZUELA
                       Corrigan, J., dissenting


two enhancements for having served a prior prison term (§
667.5, subd. (b)) and committing an offense while released on
bail or his own recognizance (§ 12022.1), both of which required
underlying felony convictions. (See Buycks, at pp. 889-891.)
Buycks reasoned that, once those underlying felony convictions
were resentenced to misdemeanors under Proposition 47,
section 1170.18, subdivision (k), which states that “[a] felony
conviction that is recalled and resentenced under subdivision
(b) . . . shall be considered a misdemeanor for all purposes,”
applied: “Therefore, at the time of resentencing of a Proposition
47 eligible felony conviction, the trial court must reevaluate the
applicability of any enhancement within the same judgment at
that time, so long as that enhancement was predicated on a
felony conviction now reduced to a misdemeanor. Such an
enhancement cannot be imposed because at that point the
reduced conviction ‘shall be considered a misdemeanor for all
purposes.’ (§ 1170.18, subd. (k).)” (Buycks, at pp. 894-895.)
       It is unclear from the majority opinion what specific
statutory amendment is being given retroactive effect within the
meaning of Estrada and Buycks under the full resentencing
rule. The majority states, “The reduction of defendant’s felony
grand theft conviction to a misdemeanor therefore established
the absence of an essential element of the street terrorism
crime” (maj opn., ante, at p. 15), suggesting it is applying section
1170.18, subdivision (k). Indeed, the majority cites Buycks’s
application of that provision. (Maj. opn., ante, at p. 15; see also
ibid. [“In light of defendant’s Proposition 47 resentencing, that
theft can no longer be regarded as felonious”].) However, the
enhancements in Buycks required underlying felony convictions
in order to be imposed, and the Proposition 47 reduction of those
felonies to misdemeanors took away a necessary component of


                                  7
                     PEOPLE v. VALENZUELA
                       Corrigan, J., dissenting


the enhancements. (Buycks, supra, 5 Cal.5th at pp. 888-891.)
By contrast, as the majority acknowledges, a street terrorism
conviction under section 186.22, subdivision (a) does not require
a conviction of any other felony offense. (See maj. opn., ante, at
pp. 15-16, fn. 5.) As such, the fact that a felony conviction
unnecessary to the street terrorism conviction was reduced to a
misdemeanor should have no bearing on the continued validity
of defendant’s section 186.22, subdivision (a) conviction. Buycks
is thus distinguishable.
      The majority’s application of the full resentencing rule
here essentially sanctions an end run around the Proposition 47
resentencing scheme. As described ante, defendant cannot
establish entitlement to relief under the resentencing procedure
of section 1170.18, subdivision (a).          Buycks recognized
alternative procedures for relief “because Proposition 47 does
not provide a specific mechanism for recalling and resentencing
a judgment solely because a felony-based enhancement has been
collaterally affected by the reduction of a conviction to a
misdemeanor in a separate judgment . . . .” (Buycks, supra, 5
Cal.5th at p. 892.) It is one thing to recognize such a procedure
in Buycks, where reduction of a felony to a misdemeanor under
Proposition 47 eliminated the felony convictions required for the
enhancements there, thus implementing the electoral intent
manifested in section 1170.18, subdivision (k). It is quite
another to apply such a procedure here.             The majority
contemplates the trial court will strike entirely the street
terrorism conviction, even though that offense was nowhere
mentioned in Proposition 47 and section 186.22 was not
amended by the act, due to the happenstance that defendant
was also concurrently convicted of grand theft, a conviction not
required for a street terrorism conviction, and that theft


                                  8
                     PEOPLE v. VALENZUELA
                       Corrigan, J., dissenting


conviction was later reduced to a misdemeanor. Indeed, the only
difference between this case and Martin is that Martin did not
have the good fortune to be convicted of theft in addition to
conspiracy to commit theft.2 Nothing in the language of
Proposition 47 suggests the electorate contemplated such a
random and haphazard scheme.
      We are, of course, bound by the voters’ lawful enactments,
and properly so. But we are bound to enforce those enactments
in accordance with the voters’ lawful intent. As Justice Yegan
observed in Martin, “The fabric of the law will stretch only so far
before it will unravel.” (Martin, supra, 26 Cal.App.5th at p.
828.) To conclude that, in providing more lenient treatment for
those convicted of nonviolent theft offenses, the voters intended
to reduce culpability for those guilty of the separate, serious
felony of street terrorism stretches credulity, and the fabric of
the law, too far. I would affirm the Court of Appeal’s judgment
affirming the trial court’s denial of resentencing under
Proposition 47.
                                                  CORRIGAN, J.




2
      Martin was convicted of shoplifting (§ 459.5) for an
incident unrelated to the charged conspiracy. (See Martin,
supra, 26 Cal.App.5th at p. 829.)


                                  9
                   PEOPLE v. VALENZUELA
                             S239122


             Dissenting Opinion by Justice Kruger


       In 2013, in an apparent gang-related incident, defendant
Luis Donicio Valenzuela took a bicycle worth around $200
dollars from another young man. He was convicted of two
felonies: grand theft from the person (Pen. Code, § 487, subd.
(c)) and active participation in a street gang (id., § 186.22, subd.
(a)). The latter offense applies to a person who actively
participates in a criminal street gang with knowledge of the
gang’s pattern of criminal activity, and who “willfully promotes,
furthers, or assists in any felonious criminal conduct by
members of that gang.” (Ibid.)
      In 2014, while these convictions were on appeal, voters
passed Proposition 47, which reclassified many drug possession
and theft offense felonies as misdemeanors. Among the
measure’s new provisions was Penal Code section 490.2, which
generally reduced felony punishment for theft of property worth
$950 or less to the misdemeanor level. (Id., subd. (a).) Invoking
this provision, defendant successfully petitioned the superior
court to reduce his grand theft conviction to a misdemeanor.
(Pen. Code, § 1170.18, subds. (a), (b), as added by Prop. 47, § 14,
approved by voters, Gen. Elec. (Nov. 4, 2014).) He now argues
that the superior court should also have dismissed his felony
gang participation conviction altogether. He reasons that once
the grand theft conviction was reduced to a misdemeanor, grand
theft could no longer be used to satisfy the “felonious criminal



                                 1
                     PEOPLE v. VALENZUELA
                        Kruger, J., dissenting


conduct” element of the gang participation crime under Penal
Code section 186.22, subdivision (a).
      The Court of Appeal rejected this argument. It explained
that because liability under Penal Code section 186.22,
subdivision (a) does not depend on having sustained any
underlying felony conviction, the fact that defendant’s grand
theft conviction was later reduced to a misdemeanor had no
bearing on the continued validity of defendant’s gang
participation conviction.     (People v. Valenzuela (2016)
5 Cal.App.5th 449, 452–453, review granted Mar. 1, 2017,
S239122.)
      The majority now reverses, reasoning that the
resentencing court’s reduction of defendant’s theft conviction to
a misdemeanor “established the absence of an essential element
of the street terrorism offense—felonious criminal conduct.”
(Maj. opn., ante, at p. 2.) “In light of defendant’s Proposition 47
resentencing,” defendant’s theft of the bicycle “can no longer be
regarded as felonious” (maj. opn., ante, at p. 15); put another
way, “the reduction of defendant’s theft conviction to a
misdemeanor establishes that he cannot be regarded as having
engaged in felonious criminal conduct” (id. at p. 16) as required
for a conviction under Penal Code section 186.22, subdivision
(a).
      Much as I sympathize with the majority’s efforts to give
appropriate effect to Proposition 47’s ameliorative purposes, I
cannot join in this reasoning. As the Court of Appeal rightly
noted, the argument conflates the grand theft conviction with
the conduct underlying it. Defendant’s gang participation
conviction did not depend on the existence of a separate
conviction for grand theft (or any other felony, for that matter);


                                  2
                     PEOPLE v. VALENZUELA
                        Kruger, J., dissenting


it depended only on his having committed or assisted in
felonious conduct to promote the activities of a criminal street
gang. It follows that the reduction of defendant’s grand theft
conviction does not entitle defendant to dismissal of his gang
participation conviction.
      This case is not like People v. Buycks (2018) 5 Cal.5th 857,
871. In Buycks, we held that reduction of a felony conviction to
a misdemeanor under Proposition 47 invalidated sentence
enhancements based on the prior felony conviction because
under Penal Code section 1170.18, subdivision (k), the reduced
conviction “shall be considered a misdemeanor for all purposes.”
There, the validity of each of the enhancements at issue
depended on the existence of a felony conviction, not simply the
commission of felonious conduct. (See Buycks, at pp. 888–890
[enhancement under Pen. Code, § 667.5, subd. (b)], 890–891
[enhancement under Pen. Code, § 12022.1].) In contrast, the
gang participation offense defined in Penal Code section 186.22,
subdivision (a), does not refer—even implicitly—to a predicate
prior felony conviction. It instead applies to a gang participant
who has assisted other gang members in felonious conduct. The
majority opinion does not explain how the reduction of
defendant’s grand theft conviction to a misdemeanor could
possibly have altered the nature of the conduct underlying the
gang participation offense.
       The majority opinion does gesture to a possible alternative
rationale for reaching the same conclusion: that setting aside
the fate of defendant’s separate theft conviction, Proposition 47
itself retroactively operated on Penal Code section 186.22,
subdivision (a), to preclude reliance on conduct involving theft
of property worth less than $950. Although the majority opinion
does not clearly say so, this is an entirely different argument for

                                  3
                     PEOPLE v. VALENZUELA
                        Kruger, J., dissenting


granting relief. It does not depend in any way on the
reclassification of defendant’s grand theft conviction; it depends,
rather, on our usual presumption that legislation lessening
punishment is intended to apply retroactively to all cases that
have not yet become final on appeal. (In re Estrada (1965) 63
Cal.2d 740, 745.) The majority touches on this argument when
it reasons that because defendant’s gang participation
conviction was not yet final when Proposition 47 took effect, “the
limited retroactivity rule of Estrada, supra, 63 Cal.2d 740,
which presumes that ameliorative changes in the criminal laws
were intended to be applied to cases with nonfinal judgments,”
makes the underlying conduct “susceptible to reassessment”
under the measure’s new provisions. (Maj. opn., ante, at p. 16.)
      There are, however, several difficulties with relying on
this argument here, beginning with the fact it has not been
properly presented to us. Defendant never made the Estrada
argument in the Court of Appeal, and that court did not address
it. Nor did defendant rely on Estrada in his briefing in this
court. Even when we specifically asked the parties to brief that
decision’s significance, defendant affirmatively disclaimed
reliance on this theory, conceding that he was not entitled to
retroactive relief under Estrada. Counsel partly withdrew that
concession in a letter submitted to the court before oral
argument, but he still did not invoke Estrada as a standalone
basis for relief; his arguments have instead relied on some
amalgam of Estrada and his original, and incorrect, theory that




                                  4
                     PEOPLE v. VALENZUELA
                       Kruger, J., dissenting


the reduction of his grand theft conviction necessarily implies
the invalidity of his gang participation conviction.1
      As a consequence, neither the parties nor the courts have
ever grappled with the implications of adopting a rule that
would regard Proposition 47 as retroactively invalidating
convictions for offenses that, like Penal Code section 186.22,
subdivision (a), depend in some way on a showing that the
defendant committed conduct punishable as a felony. The first,
threshold question is whether this theory can be squared with
People v. DeHoyos (2018) 4 Cal.5th 594, 600–603, in which we
held that defendants who were serving felony sentences on
Proposition 47’s effective date—and who therefore could seek
resentencing under Penal Code section 1170.18—could not
instead claim the direct benefit of retroactive amelioration
under Estrada.
      Even if we were to answer that question in the affirmative,
we would then have to confront an arguably anomalous
consequence of the theory. Proposition 47 was designed to
reduce certain felonies to misdemeanors. But retroactive
application of Proposition 47 in this context could instead result
in a defendant being relieved of all criminal liability for his or

1
       Defendant did brief and argue an alternative theory for
relief independent of Penal Code section 1170.18, subdivision
(k):    that defendant was entitled to resentencing under
subdivision (a) of the statute. But that theory relied not on
Estrada but on People v. Page (2017) 3 Cal.5th 1175 and People
v. Romanowski (2017) 2 Cal.5th 903. The theory fails for
reasons given in Justice Corrigan’s dissent: Unlike the crimes
involved in Page and Romanowski, the gang participation
offense in Penal Code section 186.22, subdivision (a), neither is
a grand theft offense nor has grand theft as one of its statutory
variants.


                                 5
                     PEOPLE v. VALENZUELA
                        Kruger, J., dissenting


her formerly felonious conduct. In this case, of course,
defendant was convicted of grand theft as well as gang
participation, and that theft conviction has now been reduced to
a misdemeanor. Dismissing or vacating defendant’s gang
participation conviction, as this court’s disposition directs, will
leave him with a misdemeanor conviction for his theft, just as a
person who committed the same conduct after Proposition 47
would face prosecution for misdemeanor theft. But a defendant
who, by contrast, had been charged with and convicted only of
gang participation under Penal Code section 186.22, subdivision
(a), would, under the Estrada theory, be retroactively relieved of
all liability. This is a result that the voters who approved
Proposition 47 did not likely anticipate.
      Whether that consequence is one that should preclude
retroactive relief is a significant question. But it is a question
that is not properly before us, and it is therefore not one we can
or should answer here.
      On the only question properly presented to us, I think the
Court of Appeal got it right: The reduction of defendant’s grand
theft conviction to a misdemeanor did not retroactively
invalidate defendant’s separate conviction for gang
participation. In the absence of briefing and argument to
support any other viable theory of relief, I would affirm the
judgment of the Court of Appeal.
                                                 KRUGER, J.
I Concur:
CORRIGAN, J.




                                  6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Valenzuela
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 5 Cal.App.5th 449
Rehearing Granted

__________________________________________________________________________________

Opinion No. S239122
Date Filed: June 3, 2019
__________________________________________________________________________________

Court: Superior
County: Ventura
Judge: Nancy L. Ayers

__________________________________________________________________________________

Counsel:

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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

William Quest
Deputy Public Defender
Hall of Justice
800 South Victoria Avenue, Room 207
Ventura, CA 93009
(805) 654-3032

Wyatt E. Bloomfield
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6145
