AB 333 Violates Prop 21 on 190.2(a)(22) Charge

This article involves a somewhat academic discussion of how one law violates another law, but the reason for such a decision arose from a somewhat common fact pattern.

On February 3, 2018, at about 1:15 a.m., Fernando Rojas drove to an Internet casino in Kern County.  Once he arrived, he met with Victor Nunez, drank beer and played a few casino games.

About an hour later, a man named Brandon Ellington and another man were in the parking lot of the casino, involved in an apparent marijuana transaction.  The other man hit Ellington in the face.

For unknown reasons, Rojas and Nunez then exited the casino.  Ellington saw Rojas and took off his shirt, as if readying to fight Rojas.  Rojas then threw a beer bottle at Ellington and Ellington apparently ran away. 

Rojas and Nunez then jogged over to Rojas’ car in the parking lot and drove after Ellington.  Someone from Rojas’ car shot Ellington, killing him.  Five nine-millimeter shell casings were found at the scene.

About a week later, an undercover officer arrested Rojas at the same Internet casino and arrested Nunez later the same day in the casino parking lot.

The Kern County District Attorney charged Rojas with premeditated murder (Penal Code §§ 187(a), 189), active gang participation (Penal Code § 186.22(a) and possession of a firearm by a felon (Penal Code § 29800(a)(1)).  The information further alleged that Rojas committed the murder for the benefit of, at the direction of, or in association with the Varrio Chico Lamont criminal street gang (Penal Code § 186.22(b)(1); firearm enhancements to the murder count under Penal Code §§ 12022(d) and 12022.53(d) and (e)(1); as well and an out-on-bail enhancement (Penal Code § 12022.1); a prior juvenile strike (Penal Code § 667(c)-(j) & 1170.12(a) – (e)); and three prior prison term enhancements (Penal Code § 667.5(b)).

A Kern County jury convicted Rojas of premeditated murder and active gang participation and found true the gang enhancement (Penal Code § 186.22(b)(1)), a gang-murder special circumstance under Penal Code § 190.2(a)(22)) and firearm enhancements under Penal Code § 12022.53(d) and (e)(1) and 12022(d).

The judge granted a prosecution motion to dismiss the on-bail enhancement and prior conviction enhancements.

The judge then sentenced Rojas to life in prison without the possibility of parole on the premeditated murder while an active participant in a criminal street gang and to further the activities of the criminal street gang (Penal Code § 190.2(a)(22)), plus 25 years to life for the firearm enhancement under § 12022.53(d) and (e)(1), plus three years on the 12022(d) enhancement. 

The sentence of life without the possibility of parole or death for violation of Penal Code § 190.2(a)(22) was added to the California Penal Code in 2000 after voters approved Proposition 21.  In that initiative, which included wording that “criminal street gangs and gang-related violence pose a significant threat to public safety.” 

Proposition 21 provided that its provisions could not be amended by the Legislature except by a two-thirds vote of each house, or a statute that becomes effective only when approved by the voters.

Effective January 1, 2022, Assembly Bill 333 amended subsection (f) of Penal Code § 186.22, the provision referenced in the special circumstance established by Proposition 21.  Assembly Bill (AB) 333, in general terms, increased the evidence required to establish a pattern or criminal gang activity and precluded the use of the presently charged offense to establish a pattern of criminal gang activity.  AB 333 also eliminated certain crimes from the list of crimes that could be used as gang crimes for predicate offenses, such as looting, felony vandalism and several crimes relating to access cards, documents and identity theft.

Prop 21 did not permit any amendment to its terms except upon two-thirds passage of each house or passage of enactments subject to voter approval.  However, AB 333 appears to have done exactly that without two-thirds passage by each house or by voter approval by diluting Prop 21 and taking away certain crimes and changing the definition of gang activity.

Rojas appealed his conviction and sentence on numerous grounds, but this article will just deal with his argument that his conviction for first degree murder while in association with, at the direction of or to further a criminal street gang under 190.2(a)(22), as defined under 186.22(f), must be reversed due to the new standards set forth in AB 333.

Therefore, the Fifth Appellate District, on Rojas appeal, denied Rojas appeal on this ground because AB 333 was unconstitutional insofar as it amended Proposition 21 without the necessary two-thirds of each house vote or by voter approval. 

We bring this article to the reader’s attention because we would expect others in prison on sentences under Prop 21 for gang-related murders to make a similar argument (that their conviction is invalid now under AB 333), but this is apparently not a good argument.

For more information about Assembly Bill 333, please click on the following articles: