To be honest, when I first read the question presented, I thought I was going to come out the other way in this one.
Proposition 21, adopted in 2000, increased the penalty for gang-related murders and mandated the death penalty or LWOP for anyone convicted of murder while "an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22" (if committed to further the gang). Prop. 21 also says that it can't be amended except by the voters or by a two-thirds vote of the Legislature.
So here's the question: Can the Legislature narrow the definition of a criminal street gang in Section 186.22 for purposes of Prop. 21 without a two-thirds vote? (Which is what the Legislature indeed purported to do, by majority vote, in 2021.)
The typical rule here is that if a statutory reference to another statutory provision is specific, then the definition embodied in that second provision is "locked in" as of the date of the second statute's passage for purposes of that subsequent statute. Whereas if a reference is "general" -- for example, to the entire body of common law, or something like that -- then the reference isn't locked in, and can change over time.
When first presented, I thought the Attorney General would have the better of the argument here. The reference in Prop. 21 seems awfully specific to me. Indeed, I can't think of anything much more specific. So it seemed to me like the voters wanted that definition locked in.
Which is how I would have probably come out in this one. Which in turn would have meant that I'd have written a solo dissent, since the California Supreme Court unanimously comes out the other way.
Except for one thing. Something that, for me, is dispositive. Something that, for better or worse, I learned only more than halfway through Justice Liu's opinion.
Here's the thing that changed my mind.
In a couple of places in Proposition 21, it expressly locks in existing law. For example, Section 14 of the proposition, which involved a change in the "three strikes" law, reads: "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 (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." Similarly, Section 16 of the thing says: "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."
That makes a huge difference to me. The people who wrote Prop. 21 knew full well how to lock in the existing statutory definitions when that's what they intended. They did so in multiple places, but not here. That's pretty damn good evidence of their intent, in my view.
So if that's their intent, as evidenced by the statutory text itself, I'm cool with that. That's the right way to view the statute, and that's the way I'd interpret it.
Which is why, in the end, I'm on board for the California Supreme Court's opinion.
Mind you, it's still somewhat tough to square that decision with precedent, which has found statutes "specific" (and hence locked in) in a wide variety of settings that look pretty darn similar to the case here. Similarly, I'm not really sure that Justice Liu's opinion really ever persuasively responds to what seems to me the obvious policy argument, which is that if the Legislature can narrow the scope of the gang definition, then the two-thirds requirement is essentially meaningless, since the Legislature could essentially repeal Prop. 21 entirely by changing Section 186.22 to define a gang in such exceptionally narrow terms that it never applies -- thus making Proposition 21 entirely moot.
Those are still problems for me, and serious ones.
But, hey, the people who write propositions are typically super smart. If they write the thing so that various definitions are expressly locked in, whereas others aren't, well, I'm going to operate under the assumption -- an entirely reasonable one, IMHO -- that this decision was deliberate, and interpret the statute accordingly.
Makes sense to me.
