California Court of Appeals, Second District, Sixth Division
SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER
(see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e))
March 1, 2017.
Superior Court of Ventura County, No. 2013025724, Nancy L.
P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy
Public Defender, and William Quest, Deputy Public Defender,
for Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Susan Sullivan Pithey and Mary Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
J., with Yegan, Acting P. J., and Tangeman, J., concurring.
crime of " street terrorism" requires, inter alia,
that a person actively participate in criminal street gang
activity and willfully promote, further or assist in [209
Cal.Rptr.3d 861] any felonious criminal conduct of the gang.
(Pen. Code, § 186.22, subd. (a).) The enhancement for
the commission of a felony for the benefit of a criminal
street gang requires that the underlying crime be a felony. (
Id., subd. (b)(1).) Here we resolve an unanticipated
consequence of the passage of Proposition 47, i.e., whether a
conviction for street terrorism survives after a felony
conviction that is based upon the same conduct has been
reduced to a misdemeanor. We hold that it does survive
because, unlike with a gang enhancement, a street terrorism
conviction does not require a felony conviction; it requires
only that the conduct that resulted in the conviction was
felonious at the time it was committed. We therefore affirm
the trial court's order denying resentencing on Luis
Donicio Valenzuela's street terrorism conviction.
AND PROCEDURAL HISTORY 
2013, Valenzuela stole a $200 bicycle from " the
person" of the victim and was convicted of grand theft.
(Pen. Code, § 487, subd. (c).) In addition, an
enhancement of having committed that crime for the benefit of
a gang was found to be true. (§ 186.22, subd. (b)(1).)
Valenzuela was also convicted of street terrorism (
id., subd. (a)), and sentenced to an aggregate term
of nine years eight months in prison.
time Valenzuela stole the bicycle, taking property from the
person of another was classified as grand theft, irrespective
of the property's value. Following the passage of section
1170.18 (Prop. 47) by voter initiative in November 2014,
theft of money or property worth $950 or less, even if taken
directly from another person, is " considered petty
theft and ... punished as a misdemeanor." (§ 490.2,
Proposition 47 took effect, Valenzuela successfully
petitioned the trial court to reclassify his theft ...