Current-Law Test for Gang-Based Strikes: People v. Fletcher Requires AB 333 Compliance for § 1192.7(c)(28) Prior Serious Felony Findings

Introduction

In People v. Fletcher (Cal. Aug. 25, 2025), the California Supreme Court resolved a deep split among the Courts of Appeal over whether Assembly Bill 333 (the STEP Forward Act of 2021) applies when courts decide if a defendant’s prior gang-related conviction counts as a “serious felony” under Penal Code section 1192.7, subdivision (c)(28) for purposes of the Three Strikes law and the prior serious felony enhancement (§ 667(a), the “nickel prior”).

Defendants Larry Lee Fletcher and Eric Anthony Taylor, Jr., Four Corner Hustler Crips members, were convicted by a jury for attempted premeditated murder and related offenses from a December 2020 shooting in Hemet. The Attorney General conceded that AB 333’s amendments to § 186.22 retroactively (under In re Estrada) required reversal of their gang participation conviction (§ 186.22(a)) and gang enhancements, and the Court of Appeal reversed those parts. The contested issue was whether AB 333 also governs the “strike prior” and “nickel prior” determinations premised on the defendants’ 2015 convictions for unlawful firearm possession with a § 186.22(b)(1)(A) gang enhancement. A divided Court of Appeal had held applying AB 333 would improperly amend voter initiatives (Propositions 21 and 36).

The Supreme Court granted review to decide two questions:

Does AB 333 apply to the present determination of whether an older conviction premised on § 186.22 qualifies today as a “serious felony” under § 1192.7(c)(28) for Three Strikes and § 667(a)?
If so, does that application improperly amend voter-enacted measures (Propositions 21 and 36) without voter approval or a legislative supermajority?

Summary of the Opinion

In a majority opinion by Justice Liu (joined by Justices Kruger, Groban, and Evans), the Court held:

AB 333’s amended elements of § 186.22 apply to the current determination of whether a prior conviction “would also constitute” a felony violation of § 186.22 within the meaning of § 1192.7(c)(28). That is, the court asks under current law whether the prior conviction qualifies as a serious felony for Three Strikes and the § 667(a) enhancement.
This reading rests on § 1192.7(c)(28)’s present-conditional language—“any felony offense, which would also constitute a felony violation of Section 186.22”—and on People v. Rojas (2023) governing general statutory references that incorporate subsequent amendments.
The Three Strikes “lock-in” provisions (§§ 667.1, 1170.125) fix the effective date of the list of serious felonies but do not freeze the elements of listed offenses; the “determination clause” (§§ 667(d)(1), 1170.12(b)(1)) speaks to whether a prior was a felony or misdemeanor, not whether it was “serious” or “violent.” Proposition 36’s 2012 tweak to § 1170.12(b)(1) did not change that settled understanding.
Applying AB 333 in this way does not unconstitutionally amend Proposition 21 (which added § 1192.7(c)(28)) or Proposition 36 (which updated the lock-in date).
The abstracts of judgment alone were insufficient to prove beyond a reasonable doubt that the 2015 convictions qualify as prior serious felonies under current § 186.22; the Court vacated the true findings on the priors and remanded for potential retrial under the correct law.
The Court disapproved People v. Scott (91 Cal.App.5th 1176), People v. Aguirre (96 Cal.App.5th 488), and People v. Gonzalez (98 Cal.App.5th 1300) to the extent inconsistent.

Chief Justice Guerrero dissented (joined by Justices Corrigan and Jenkins), arguing the statutes look backward to the fact of a “prior conviction” for the listed serious felonies, that § 1192.7(c)(28)’s present tense is driven by plea-bargaining context and does not mandate a current-law test for priors, and that the majority’s approach is both textually unsound and practically unworkable under record-of-conviction limits.

Analysis

1) The statutory architecture: how “serious felonies” are used in Three Strikes and § 667(a)

California’s Three Strikes law comprises parallel statutory (Penal Code § 667(b)–(i)) and initiative (§ 1170.12) schemes. A “prior serious felony” is defined by reference to the enumerated list in § 1192.7(c), and a “prior violent felony” by § 667.5(c). If the current offense is a serious felony, § 667(a) imposes an additional five-year enhancement per prior serious felony conviction (“nickel prior”). Proposition 21 (2000) added § 1192.7(c)(28): “any felony offense, which would also constitute a felony violation of Section 186.22,” thereby sweeping in both the substantive gang offense (§ 186.22(a)) and gang-benefit enhancements (§ 186.22(b)) as serious-felony predicates when attached to a felony.

2) Lock-in provisions regulate timing, not elements

The “lock-in” provisions (§§ 667.1, 1170.125) fix the date at which the § 1192.7(c) and § 667.5(c) lists are consulted for current-offense sentencing. Their function is to avoid a lag or mismatch between when offenses are added to the lists and when they may be used as strikes. The Court emphasized that these provisions “regulate the timing by which offenses added to the serious felony list become available to be alleged as strikes,” not the governing elements of listed crimes. Interpreting lock-in to freeze elements, as some Courts of Appeal had, was rejected.

3) Determination clause addresses felony vs. misdemeanor, not “serious/violent” status

The determination clause in § 667(d)(1) (and as amended in § 1170.12(b)(1)) provides that the “determination of whether a prior conviction is a prior felony conviction … shall be made upon the date of that prior conviction.” As construed in early Three Strikes cases (Sipe, Gonzales v. Superior Court, Reed, Anderson, Green), this clause prevents post-conviction reclassifications (e.g., later misdemeanor reduction) from changing a prior felony into a misdemeanor unless the conversion occurred at initial sentencing. It does not govern whether a prior is “serious” or “violent.” That question is answered by the enumerated lists as of the operative lock-in date. Proposition 36’s addition of the words “serious or violent” to the initiative version in 2012 did not clearly or purposefully overturn this settled understanding; in Henderson (2022) the Court declined to infer major changes from ambiguous edits absent clear voter intent.

4) The textual pivot: § 1192.7(c)(28)’s present-conditional phrasing and general-reference logic

The heart of Fletcher is textual. Section 1192.7(c)(28) defines a serious felony as “any felony offense, which would also constitute a felony violation of Section 186.22.” The Court read “would also constitute” as a present-conditional formulation that directs courts to apply current § 186.22 to decide whether the prior felony qualifies as a serious felony today. The Court reinforced this reading with Rojas (2023), which held that Proposition 21’s cross-reference to § 186.22(f) in the gang-murder special circumstance was a general reference that sweeps in later amendments. Section 1192.7(c)(28)’s broad reference to “a felony violation of Section 186.22” is, if anything, more general. Under Rojas’s general-reference canon, the cross-reference updates with § 186.22 as amended by AB 333.

By narrowing its holding to § 1192.7(c)(28), the Court avoided addressing how other § 1192.7(c) paragraphs—some of which incorporate statutes differently or describe conduct generically—should be treated.

5) Parity for the “nickel prior”: § 667(a) prior serious felony enhancements

The prior serious felony enhancement in § 667(a) incorporates the same § 1192.7(c) list. Although § 667(a) lacks a determination clause and its own lock-in provision, the Court harmonized the analysis: whether a prior is “serious” for § 667(a) purposes likewise turns on § 1192.7(c)(28)’s present-conditional test. This keeps § 667(a) and Three Strikes largely in sync, with divergence only where the determination clause makes a difference (e.g., Park held a wobbler reduced to a misdemeanor could not support a § 667(a) enhancement but could still count as a strike because of the determination clause).

6) Remedy, proof, and Estrada’s limited role

Because the People proved the priors only through abstracts of judgment—which did not establish that the 2015 convictions satisfy § 186.22 as amended—the Court vacated the “true” findings and remanded for possible retrial under the correct standard. The Court rejected the dissent’s claim that retrial is necessarily futile. On remand, the People may attempt to prove, beyond a reasonable doubt and within record-of-conviction limits, that the earlier convictions “would also constitute” a felony violation of § 186.22 under AB 333’s elements.

The Court clarified that its construction of the Three Strikes and § 667(a) framework is not itself an application of Estrada. Estrada (via Tran) explains why AB 333’s narrower § 186.22 applies to nonfinal judgments (e.g., to reverse defendants’ gang counts/enhancements). But the current-law test for § 1192.7(c)(28) flows from the statute’s text and the general-reference principle, not from retroactivity doctrine.

7) No unconstitutional amendment of Propositions 21 or 36

Applying current § 186.22 to the § 1192.7(c)(28) inquiry does not amend the initiatives themselves; the list of serious felonies remains intact, and the lock-in date set by Proposition 36 remains in place. AB 333 amended § 186.22. Section 1192.7(c)(28) is a general cross-reference that, as interpreted in Fletcher and Rojas, brings those amendments along for purposes of determining whether a prior felony “would also constitute” a felony violation of § 186.22.

Precedents Cited and Their Influence

People v. Tran (2022) 13 Cal.5th 1169: AB 333’s changes to § 186.22 are ameliorative and apply to nonfinal judgments (Estrada). This undergirds reversal of current gang counts/enhancements and establishes that the “current” § 186.22 is AB 333’s version in pending cases.
People v. Rojas (2023) 15 Cal.5th 561: Proposition 21’s cross-reference to § 186.22 is a general reference that incorporates subsequent amendments. Fletcher extends this reasoning to § 1192.7(c)(28).
People v. Henderson (2022) 14 Cal.5th 34: Absent clear voter intent, ambiguous edits in Prop 36 do not alter settled Three Strikes doctrine. Analogous caution applied to the determination clause in § 1170.12(b)(1).
People v. Johnson (2015) 61 Cal.4th 674: Explained the historical purpose of lock-in dates and their updates, setting the stage for Fletcher’s conclusion that lock-in regulates timing, not elements.
People v. Park (2013) 56 Cal.4th 782: Demonstrated divergence between § 667(a) and Three Strikes due to the determination clause; used by Fletcher to harmonize analyses where possible.
Early Three Strikes cases (Reed, Anderson, Green, Sipe, Gonzales v. Superior Court, Turner, Moenius, O’Roark, James): Treated the determination clause as a felony/misdemeanor rule; treated “serious/violent” status by reference to the lists as of the applicable lock-in date.
People v. Briceno (2004) 34 Cal.4th 451: Recognized that § 1192.7(c)(28) turns prior gang-related felonies into strikes if a defendant reoffends, supporting Fletcher’s focus on the current proceeding’s determination.

The Dissent’s Position

Chief Justice Guerrero would hold that a conviction “for a felony violation of § 186.22” is, by definition, a prior serious felony conviction because § 1192.7(c)(28) lists that violation. The dissent emphasizes:

The statutes’ text focuses on a defendant “who previously has been convicted” of a serious felony; the “nature of the conviction” is fixed as of conviction (citing Gallardo’s record-of-conviction principle and federal cases like McNeill and Brown about backward-looking recidivist inquiries).
§ 1192.7 is a plea-bargaining statute; its present-conditional wording reflects pretrial uncertainty, not a command to re-test historic convictions against current elements.
Under Gallardo, courts cannot re-find facts never necessarily found; AB 333 added new, narrower elements. Many past § 186.22 priors will be impossible to re-qualify because the old record rarely establishes AB 333’s “collective engagement” and “more than reputational benefit” findings.
The majority’s approach undermines recidivist punishment and lets ordinary legislation effectively narrow voter-enacted Three Strikes consequences.

Impact and Prospective Effects

Immediate effects in pending cases

Where a prior serious felony or strike allegation rests on § 1192.7(c)(28), courts must now apply AB 333’s elements of § 186.22 when deciding if that prior “would also constitute” a felony violation of § 186.22 today.
Abstracts of judgment alone will often be insufficient. The People must prove, beyond a reasonable doubt, with permissible record-of-conviction materials (e.g., charging documents, verdict forms, jury instructions, trial transcripts, plea colloquies and factual bases, minute orders) that the prior meets current § 186.22.
Many past priors may not re-qualify, especially where the historical record does not address AB 333’s new requirements (e.g., predicates by gang members, “collectively engaged,” a “more than reputational” common benefit).

Future prosecutions

Prosecutors intending to preserve § 1192.7(c)(28)-based priors should build records that speak to AB 333’s elements. For trials, that means clear jury instructions and verdict forms on the AB 333 elements; for pleas, that means robust factual bases.
Defense counsel will scrutinize the prior-record materials for absence of AB 333 elements and will object to attempts to “relitigate” facts beyond the record of conviction (see Gallardo).

Harmony between Three Strikes and § 667(a)

Fletcher largely aligns “strike priors” and “nickel priors” where § 1192.7(c)(28) is the predicate. Expect parallel results for both enhancements in gang-based prior litigation.

No constitutional amendment problem

Fletcher is significant for initiative law: interpreting a cross-reference as a general reference to evolving law (Rojas) can avoid “amendment” problems while still applying legislative changes like AB 333 to initiative-linked sentencing consequences.

Systemic effects and litigation volume

Expect numerous resentencing and remand proceedings where § 1192.7(c)(28)-based priors were found true on thin proof (e.g., abstracts only). The Court’s reminder that retrial is not categorically futile leaves room for case-by-case outcomes.
Open appellate questions will likely arise regarding the sufficiency and scope of record-of-conviction evidence to satisfy AB 333’s detailed elements for old priors.

Complex Concepts Simplified

Three Strikes law: Increases punishment based on prior serious/violent felonies. It exists in two parallel statutes: § 667(b)–(i) (legislative) and § 1170.12 (initiative).
Serious felony list (§ 1192.7(c)): A catalog of offenses or offense-descriptions that count as “serious felonies.” Paragraph (c)(28) captures “any felony offense” that “would also constitute” a felony violation of § 186.22.
Lock-in provisions (§§ 667.1, 1170.125): Fix the version-date of the serious/violent lists used to evaluate priors for a current offense; they do not freeze elements.
Determination clause (§§ 667(d)(1), 1170.12(b)(1)): Directs courts to determine whether the prior was a felony (as opposed to a misdemeanor) by reference to the date of the prior conviction; it does not address “serious/violent” status.
AB 333 (STEP Forward Act): Narrowed § 186.22’s definitions (e.g., what counts as a “criminal street gang,” “pattern of criminal gang activity,” and “common benefit,” requiring more than reputational benefits and “collective” engagement).
General reference canon: A statute that generally references another statute is presumed to incorporate later amendments; a specific, time-fixed incorporation does not.
Record of conviction (Gallardo): The court may consider only facts necessarily found by a jury or admitted in a plea; it may not find new historical facts about the prior conduct.

Practical Guidance

For prosecutors

When alleging § 1192.7(c)(28)-based priors, gather certified record-of-conviction materials that actually show AB 333’s elements were necessarily found or admitted. Avoid relying solely on abstracts.
If the prior was by plea, obtain the plea transcript and factual basis. If by jury, obtain instructions, verdict forms, and any special findings related to gang benefit and predicate offenses, plus trial transcripts of gang evidence.
In new cases, craft charges and jury instructions to ensure findings address AB 333’s elements expressly; in pleas, ensure the factual basis tracks those elements.

For defense counsel

Move to strike § 1192.7(c)(28)-based priors lacking proof that the prior “would also constitute” a felony violation of § 186.22 under AB 333. Emphasize Gallardo’s limits on going beyond the record of conviction.
Scrutinize whether the record contains proof of “collective engagement,” “common benefit more than reputational,” and the required nature of predicate offenses.

For trial courts

Require proof beyond a reasonable doubt, confined to record-of-conviction materials, that the prior qualifies under current § 186.22. Abstracts alone are insufficient.
On remand after Fletcher, permit targeted litigation of the prior’s status but bar relitigation of historical facts not established by the prior record.

Unanswered Questions and Future Litigation

Scope beyond § 1192.7(c)(28): Fletcher was careful not to decide what law applies for other paragraphs of § 1192.7(c), some of which reference statutes differently or describe conduct generically.
Proof problems: How often will historical records suffice to establish AB 333’s added elements? The dissent forecasts systemic shortfalls; the majority leaves that to case-by-case adjudication.
Interaction with plea practices: Will courts allow supplementation of old records with plea colloquy recordings or minute orders not previously collected? Expect evidentiary disputes over authenticity and completeness.

Conclusion

People v. Fletcher establishes a pivotal rule for California recidivist sentencing when the predicate serious felony is gang-based: § 1192.7(c)(28) requires a present-law inquiry, so AB 333’s narrowed § 186.22 elements govern whether a prior conviction “would also constitute” a felony violation of § 186.22. Lock-in provisions control when enumerated offenses count but do not freeze elements; the determination clause concerns felony-versus-misdemeanor status, not the serious/violent characterization. Applying AB 333 in this setting does not amend Propositions 21 or 36.

The decision will materially affect the litigability of many gang-based prior allegations. Proof will hinge on the historical record of conviction, and in not a few cases the People may fail to establish AB 333’s added requirements. At the same time, Fletcher is narrow: it addresses § 1192.7(c)(28) and leaves the treatment of other serious-felony paragraphs for another day. Going forward, prosecutors and courts must align charging, instructions, and plea practices with AB 333’s elements if they wish to preserve gang-based priors for Three Strikes and § 667(a) enhancements. Defense counsel have a clear pathway to challenge old priors that lack record support under current law.