Rojas

Discussion.

SEE CONCURRING AND DISSENTING OPINION

Defendant Fernando Rojas’s fellow gang member shot and killed an individual with whom defendant had an altercation moments prior. Defendant was convicted of first degree murder with a gang special circumstance finding; and active gang participation. The Attorney General concedes that, as a result of the passage of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), defendant’s conviction for active gang participation and several enhancements must be reversed. We accept that concession. We reject defendant’s remaining contentions, including a Batson/Wheeler1 claim and a challenge to his gang-murder special circumstance based on changes made to Penal Code section 186.222 by Assembly Bill 333. We hold that allowing Assembly Bill 333’s changes to section 186.22 to affect section 190.2, subdivision (a)(22) would constitute an impermissible amendment of Proposition 21. We reverse the active gang participation conviction and several enhancements, but otherwise affirm.

BACKGROUND

In an amended information filed August 14, 2019, the Kern County District Attorney charged defendant Fernando Rojas with premeditated murder…