Rodas-Gramajo v. Super. Ct. ( 2023 )

Filed 6/15/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BRIAN RODAS-GRAMAJO,
Petitioner,
v. A166375
THE SUPERIOR COURT OF
MARIN COUNTY, (Marin County
Respondent; Super. Ct. No. SC214415A)
THE PEOPLE,
Real Party in Interest.
Following a preliminary hearing, petitioner Brian Rodas-Gramajo was
charged with various crimes alleged to have been committed “for the benefit
of, at the direction of, or in association with a criminal street gang, with the
specific intent to promote, further, or assist in criminal conduct by gang
members” — a gang enhancement triggering increased punishment. (Pen.
Code, § 186.22, subd. (b)(1); undesignated statutory references are to this
code.) While he awaited trial, the Legislature enacted Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Assembly Bill 333), altering the requirements for
imposing the enhancement. As relevant here, the legislation altered the
proof necessary to establish the existence of a criminal street gang. (§ 186.22,
subd. (e)(1), as amended by Stats. 2021, ch. 699, § 4.)
1
Rodas-Gramajo thereafter moved to dismiss the gang allegation
pursuant to section 995, arguing the People failed to present sufficient
evidence establishing the existence of a criminal street gang under amended
section 186.22. The trial court denied the motion. Instead, consistent with
section 995a, it reopened the preliminary hearing to allow the People to
proffer additional evidence to satisfy the new gang enhancement elements.
Rodas-Gramajo sought a writ of mandate to compel the court to set aside the
information; we summarily denied the petition.
The California Supreme Court granted Rodas-Gramajo’s petition for
review and remanded the matter to this court with directions to vacate our
decision and to issue an order to show cause why he is not entitled to
dismissal of the gang enhancement allegations. (Rodas-Gramajo v. Superior
Court, review granted Jan. 25, 2023, S277862.) In addition, we requested
supplemental briefing by both parties on, among other issues, whether
section 995 is the appropriate vehicle to challenge an information when the
Legislature subsequently changes the elements of a charge or enhancement.
We conclude Rodas-Gramajo properly used a section 995 motion to dismiss
his information, but the missing evidence supporting the amended elements
constituted “minor errors of omission” for which section 995a remand was
appropriate. Accordingly, we deny the writ.
BACKGROUND1
In October 2020, the victim was entering his residence in San Rafael
when three people, including Rodas-Gramajo, confronted him. One of the
men, Jesus Mendez-Munoz, lowered his shirt collar to reveal an “X8” neck
tattoo, affiliated with the 18th Street gang. Rodas-Gramajo asked the victim
1The following facts are from the preliminary hearing reporter’s
transcript, but they have not been conclusively established for all purposes.
2
to “represent himself”— that is, asked whether he was a gang member, a
rival gang member, or if he wanted to be a gang member — and called him a
“snitch.” The three men began to beat and kick the victim, bloodying his face.
Although the victim was not a gang member, he wore blue bandana shoelaces
and a Raiders football team lanyard, both of which were associated with the
18th Street gang.
At the preliminary hearing, a police officer testified as a criminal street
gang expert. He described the 18th Street gang — also known as Canal
Street Gangsters or 18th Street — as a subset of the Sureño street gang
operating in San Rafael. The gang has thousands of members and is
associated with the number 18 in any form or symbol, such as “XV3” or
“XVIII,” as well as the colors blue, black, and attire affiliated with the
Raiders. The 18th Street gang engages in criminal activity, such as assault
with deadly weapons, criminal threats, selling drugs, and vandalism. The
officer testified that assaulting a person benefits the gang by creating a
reputation for violence. According to the officer, wearing gang attire when
not a member of a gang is a sign of disrespect that actual gang members find
problematic. Assaults build the gang’s credibility and respect in the
community. Violence is also used to deter people from reporting crimes.
The officer opined Rodas-Gramajo is a member of the 18th Street gang.
Indeed, two months after the October 2020 attack, Rodas-Gramajo registered
with the police department as an 18th Street gang member, noting he had
been a member since he was 13 years old.2 (§ 186.30.) A different officer also
identified two predicate offenses committed by known 18th Street gang
2 A person with a gang-related conviction, enhancement, or finding at
disposition or sentencing must register with local police within 10 days of
release from custody. (§ 186.30.)
3
members — a 2017 assault committed by Rodas-Gramajo and Dixon
Hernandez-Gonzalez, and a July 5, 2019, assault committed by Ashley
Myers. According to the officer, the victim in the 2017 assault was a known
member of the Norteño street gang, a Sureño rival. After the preliminary
hearing, Rodas-Gramajo was charged with felony assault by means likely to
cause great bodily injury. (§ 245, subd. (a)(4).) The complaint further alleged
he committed the offense with the specific intent to promote, further, and
assist in criminal conduct by members of a criminal street gang and for the
benefit of the 18th Street gang. (§ 186.22.)
Assembly Bill 333 became effective on January 1, 2022, while
Rodas-Gramajo awaited trial. Under former section 186.22, the existence of a
“criminal street gang” was established by having (1) an ongoing association of
three or more persons with a common name, identifying symbol or sign;
(2) one of the group’s primary activities be committing one or more statutorily
enumerated criminal offenses; and (3) the members individually or
collectively engage or engaged in a pattern of criminal gang activity. (Former
§ 186.22, subd. (f).) Demonstrating a “pattern of criminal gang activity”
required establishing the commission of two or more enumerated offenses,
“provided at least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years after a
prior offense, and the offenses were committed on separate occasions, or by
two or more persons.” (Former § 186.22, subd. (e).)
As relevant here, Assembly Bill 333 amended the definition of a
“criminal street gang.” Now, proof of an “ongoing, organized association or
group of three or more persons, whether formal or informal,” whose members
“collectively engage in, or have engaged in, a pattern of criminal gang
activity” is required. (§ 186.22, subd. (f), as amended by Stats. 2021, ch. 699,
4
§ 4, italics added.) Moreover, to establish a “pattern of criminal gang
activity,” there now must be proof of two or more enumerated offenses that
“occurred within three years of the prior offense and within three years of the
date the current offense is alleged to have been committed.” (§ 186.22,
subd. (e)(1), italics added.) The predicate offenses must have been
“committed on separate occasions or by two or more members,” rather than
persons. (Ibid., italics added.) Finally, the gang must derive more than a
reputational benefit from both the predicate and charged offenses. (Ibid.)
Examples of an acceptable benefit include “financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (§ 186.22,
subd. (g), as amended by Stats. 2021, ch. 699, § 4.)
Based on Assembly Bill 333, Rodas-Gramajo moved to set aside the
information pursuant to section 995. He argued the preliminary hearing
evidence was insufficient to prove the alleged criminal street gang collectively
engaged in a pattern of criminal gang activity. In addition, he argued there
was no evidence the predicate offenses for establishing the pattern of
criminal gang activity were committed by two or more gang members or that
the benefit from those offenses was more than reputational. Finally, there
was no evidence, Rodas-Gramajo argued, the charged offense benefitted the
gang in a manner that was more than reputational.
The People did not dispute there was insufficient evidence to satisfy the
gang enhancement elements as amended by Assembly Bill 333 and instead
requested the case be remanded to the magistrate to address the deficiencies
under section 995a. The additional anticipated evidence consisted of
requesting the magistrate take judicial notice of a file previously used to
prove a predicate offense, testimony by an officer about the facts of that
5
offense and conveying the perpetrator’s admission to being a gang member,
and testimony from the People’s prior expert that the predicate and charged
offense benefitted more than the gang’s reputation. The prosecutor estimated
presenting this additional information would take approximately one hour.
Based upon the prosecution’s proffer, the trial court concluded the
evidentiary omissions were minor and ordered limited remand under section
995a; it denied the motion to set aside the information.
DISCUSSION
Rodas-Gramajo contends the trial court abused its discretion by
reopening the preliminary hearing to permit the People to address the
amended gang enhancement elements — amendments that retroactively
apply to him since his case is not yet final — because the defects in the
evidence were not minor errors of omission under section 995a. (People v.
Lopez (2021) 73 Cal.App.5th 327, 344.) We disagree.
I.
Under section 995, a court must dismiss an information if a defendant
has been committed without reasonable or probable cause to believe they are
guilty of the charged crime. (§ 995, subd. (a)(2)(B); People v. Mower (2002)
28 Cal.4th 457, 473.) A section 995 motion reviews the sufficiency of the
information based on the record before a magistrate at a preliminary hearing.
(Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269.) Defeating a
section 995 motion to dismiss thus requires demonstrating the existence of
each element of the charged offense. (Thompson v. Superior Court (2001)
91 Cal.App.4th 144, 148–149.) A court should set aside an information “only
when there is a total absence of evidence to support a necessary element of
the offense charged.” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th
6
1217, 1226.) Charges that have been dismissed may be refiled once, but not
twice. (§ 1387, subd. (a); People v. Juarez (2016) 62 Cal.4th 1164, 1167.)
As a preliminary matter — and as Rodas-Gramajo and the Attorney
General concede in the supplemental briefing — a section 995 motion can be
used to challenge an information when the Legislature subsequently changes
the elements of a charge or enhancement. Such a motion may be appropriate
when “changed circumstances are shown which have a significant bearing on
the question whether a defendant was indicted or committed without
probable cause.” (In re Kowalski (1971) 21 Cal.App.3d 67, 70.) A “substantial
change in the law” is one example of such “changed circumstances.” (Ibid.
[change in law making inadmissible much of the testimony considered by a
magistrate was a changed circumstance]; see also Menifee v. Superior Court
(2020) 57 Cal.App.5th 343, 349 [§ 995 motion could challenge charges and
enhancements where California Supreme Court decision rendered evidence
presented at the preliminary hearing inadmissible].)
Here, Assembly Bill 333 amended the elements of gang enhancements
in section 186.22, “ ‘increas[ing] the threshold’ ” for imposing the
enhancement, “with obvious benefit” to defendants. (People v. Tran (2022)
13 Cal.5th 1169, 1207.) Those amendments apply retroactively to the
showing necessary to hold Rodas-Gramajo to answer on his gang
enhancement allegation. (Mendoza v. Superior Court (2023) 91 Cal.App.5th
42, 48 (Mendoza).) As the parties agree, Assembly Bill 333 constituted a
subsequent change in the law and rendered the evidence in this case
insufficient to support the gang enhancement charges. The insufficiency of
the evidence is evident from the “four corners” of the preliminary hearing
transcript, and Rodas-Gramajo properly challenged his information pursuant
to section 995. (Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1595.)
7
Next, Rodas-Gramajo’s writ challenging the denial of his section 995
motion is timely. Appellate review of a section 995 motion is authorized if
the motion was filed within 60 days of a defendant’s arraignment. (§ 1510;
Fleming v. Superior Court (2010) 191 Cal.App.4th 73, 103.) Rodas-Gramajo
concedes he did not satisfy this time limit — he was arraigned on March 11,
2021 and did not file the section 995 motion until July 14, 2022. Pretrial
appellate relief is nonetheless available since he demonstrates the lack of an
opportunity to raise any evidentiary deficiencies due to Assembly Bill 333
within 60 days of his arraignment. (Fleming, at p. 103 [lack of awareness of
an issue is another exception to § 1510’s time limit].) Assembly Bill 333
became effective January 1, 2022, a date already well beyond the 60-day time
limit. (Stats. 2021, ch. 699, § 4.) Although the People insist Rodas-Gramajo
was required to promptly file his motion to dismiss within 60 days after these
issues became ripe on January 1, 2022, they fail to cite anything to support
this assertion. (Compare with Fleming, at pp. 103–105 [petitioner fulfilled
“no opportunity” exception where § 995 motion was filed more than two years
after arraignment since counsel must read and digest lengthy grand jury
transcripts and exhibits even though record was finalized prior to
arraignment].)
II.
Nevertheless, dismissing Rodas-Gramajo’s information based on the
subsequent legislative changes is unnecessary. On this record, remand for
further preliminary proceedings under section 995a is appropriate. That
statute confers the court with discretion to reopen a preliminary hearing
without dismissing the action, refiling a charge, and initiating an entirely
new preliminary hearing if certain prerequisites are established. (§ 995a,
subd. (b)(1); Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 814.)
8
Specifically, the court may, upon the prosecution’s motion, order a remand for
further proceedings to correct “minor errors of omission, ambiguity, or
technical defect” in the commitment. (§ 995a, subd. (b)(1).) Limited remand
is only permitted where the errors “can be expeditiously cured or corrected
without a rehearing of a substantial portion of the evidence.” (Ibid.)
Whether the court may order a limited remand thus depends on first
identifying the type of omission or defect and then determining whether it
can be cured expeditiously. (Tharp v. Superior Court (1984) 154 Cal.App.3d
215, 219 (Tharp).)3 We review the trial court’s findings for substantial
evidence and review its decision to order further proceedings for abuse of
discretion. (Garcia, at p. 814.)
Relying on Burnett v. Superior Court (1974) 12 Cal.3d 865, Rodas-
Gramajo contends the trial court lacks discretion to reopen the preliminary
hearing for additional evidence. We disagree. In Burnett, the People were
attempting “to bolster the record so that probable cause for commitment
might be more clearly demonstrated.” (Id. at p. 871.) The court determined
there was no statutory authority conferring a trial court with “discretion to
remand the cause to the magistrate in lieu of making an order setting aside
3 In Mendoza, the Court of Appeal reviewed the denial of a section 995
motion — as here, the defendant sought to dismiss an information based on
Assembly Bill 333’s passage. (Mendoza, supra, 91 Cal.App.5th at p. 47.) The
court concluded the prosecution could “move to reopen the preliminary
hearing proceedings to present additional evidence on the amended elements
of the gang-related charges.” (Id. at p. 54.) Unlike here, however, the
prosecution did not seek a remand, and the opinion’s discussion of the
propriety of that approach may have been dicta. (Ibid.) Even so, we find the
reasoning in Mendoza persuasive. (Smith v. County of Los Angeles (1989)
214 Cal.App.3d 266, 297 [giving dicta persuasive weight when it includes
thorough analysis or compelling logic of the issue].) Moreover, there was a
request for section 995a remand here, and we review the court’s remand
order based on the record.
9
the information if, in the court’s opinion, the receipt of further testimony at a
reconvened preliminary hearing would avoid the necessity of refiling a
complaint and initiating a new prosecution.” (Id. at p. 868.) Rather, under
existing statutes, a cause could only be resubmitted to a magistrate “for the
purpose of correcting a procedural irregularity or to correct an inadvertence
which is clerical in nature.” (Id. at p. 872.) But Burnett was decided before
the Legislature amended section 995a and expressly authorized a remand to
expeditiously cure minor errors. (Burnett, at p. 872; Stats. 1982, ch. 1505,
§ 4; Caple v. Superior Court (1987) 195 Cal.App.3d 594, 600–601 (Caple)
[addition of § 995a, subd. (b) “changed, to some extent, the holding in
Burnett”].) As even Rodas-Gramajo concedes, section 995a authorizes
remand under certain circumstances.
Turning to the merits of Rodas-Gramajo’s petition, authorizing a
section 995a remand to establish facts satisfying the newly amended gang
enhancement elements — both the charged offense and predicate offenses
must provide more than a reputational benefit to the gang, and the predicate
offenses establishing a pattern of criminal gang activity must have been
committed by two or more gang members — was not an abuse of discretion.
The People’s failure to present this evidence — not required by former section
186.22 at the time of the preliminary hearing — constituted an error of
omission. (Tharp, supra, 154 Cal.App.3d at p. 220 [defining omission as “the
act of failing to include”]; Mendoza, supra, 91 Cal.App.5th at p. 58; cf. People
v. Sek (2022) 74 Cal.App.5th 657, 668 [harmless error analysis applies where
“the new element to the offense is introduced through the retroactive
10
application of a new law”].) It was not the result of “volitional decisions” or
strategic choices. (Tharp, at p. 220.)4
More importantly, the omissions were minor, that is, ones that are
“comparatively unimportant.” (Caple, supra, 195 Cal.App.3d at p. 602.) That
Assembly Bill 333 increased the threshold for imposing a gang enhancement
does not automatically render the resulting evidentiary omissions major or
significant, as Rodas-Gramajo contends.5 (Caple, at p. 601.) Section 995a
remand provisions may be utilized if the “omission is minor when considered
in relation to the balance of the evidence required in order to hold the accused
4 We acknowledge the failure to prove elements that did not exist at the
time of the preliminary hearing is not something one would ordinarily think
of as an “error.” In the context of section 995a and the case law interpreting
it, however, we conclude it was an error inasmuch as it was not the result of
an intentional, strategic choice. (Tharp, supra, 154 Cal.App.3d at p. 220;
Mendoza, supra, 91 Cal.App.5th at p. 58.) The prosecution did not
intentionally omit — or forget to include — evidence supporting the new gang
enhancement elements; such evidence was unnecessary at the time of the
preliminary hearing. But the subsequent amendments retroactively
rendered the failure to adduce the evidence a defect or error. If it were
otherwise, and section 995a was not available, defendants whose criminal
complaints had been previously dismissed would reap a windfall due to a
postpreliminary hearing change in the law. (Mendoza, at p. 61; § 1387,
subd. (a) [order terminating an action bars any other prosecution for the
same offense if it was previously terminated].)
5 In its opposition to Rodas-Gramajo’s section 995 motion, the People
stated “section [995a] would not typically apply to this case because the
evidentiary requirements under AB 333 are not minor.” (Italics added.)
Rodas-Gramajo interprets this as a concession there was no “minor omission”
here. We disagree. The statement suggests the People acknowledged
Assembly Bill 333 made significant changes to the gang enhancement statute
— an issue that is neither in dispute nor dispositive of the question
here. (People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6; Caple, supra,
195 Cal.App.3d at p. 601.) Moreover, even if Rodas-Gramajo’s interpretation
is correct, “we are not ‘bound’ to accept a party’s concession on a question
of law.” (People v. Vivar (2021) 11 Cal.5th 510, 524.)
11
to answer,” rather than determining the “magnitude of the defect by its effect
on the prosecution’s case.” (Caple, at pp. 601–602.) Accepting Rodas-
Gramajo’s interpretation would “eviscerate section 995a, subdivision (b)(1),
by permitting its use only when the omitted evidence was unnecessary in the
first instance.” (Caple, at p. 602.)
Under the strong suspicion standard governing a section 995 motion,
the People already provided the bulk of the required proof establishing a
“criminal street gang” and a “pattern of criminal gang activity” to hold
Rodas-Gramajo to answer for the gang enhancement allegation — that he
committed a felony for the benefit of, at the direction of, or in association with
a criminal street gang with the specific intent to promote, further, or assist
criminal conduct by gang members. (§ 186.22, subd. (b)(1); Lexin v. Superior
Court (2010) 47 Cal.4th 1050, 1072 [probable cause is “whether the evidence
is such that ‘a reasonable person could harbor a strong suspicion of the
defendant’s guilt’ ”]; Caple, supra, 195 Cal.App.3d at p. 603.) The evidence
indicates Rodas-Gramajo engaged in an assault with other known 18th Street
gang members, including one perpetrator who flashed a gang sign. Evidence
also mostly established that the 18th Street gang qualifies as a “criminal
street gang” — “an ongoing, organized association or group of three or more
persons . . . having as one of its primary activities the commission of one or
more [enumerated criminal acts], having a common name or common
identifying sign or symbol. . . .” (§ 186.22, subd. (f); People v. Lopez, supra,
73 Cal.App.5th at p. 344.) The People’s expert discussed at length the 18th
Street gang’s characteristics, such as its formation as a subset of the Sureño
gang in the 1960s or 1970s, its membership numbering in the tens of
thousands, their identifying signs and symbols, and the gang’s criminal
activities, such as assault and drug trafficking. Relative to the balance of the
12
already admitted gang-related evidence, the additional facts needed to satisfy
the newly amended “pattern of criminal gang activity” elements — that two
or more enumerated offenses were committed on separate occasions or by two
or more members, that the predicate and charged offenses commonly
benefited a criminal street gang, and that the common benefit from the
offenses is more than reputational (§ 186.22, subd. (e)(1)) — are
“comparatively unimportant.” (Caple, at p. 602, italics omitted.)
First, the People already identified two assaults qualifying as predicate
offenses.6 (§ 186.22, subd. (e)(1)(A) [assault is an enumerated offense].) They
presented evidence regarding a 2017 assault involving Rodas-Gramajo and
Hernandez-Gonzalez, who the officer identified as an 18th Street gang
member. In addition, the People’s expert testified about a 2019 assault by
Myers, another 18th Street gang member. Assuming the People must
demonstrate this 2019 offense was committed by more than one gang
member,7 sufficient evidence satisfies this requirement. The trial court
6 We reject Rodas-Gramajo’s argument the People failed to prove gang
members collectively engaged in a pattern of criminal activity. Collective
engagement is established by identifying the requisite predicate offenses —
two or more offenses among a list of enumerated criminal offenses that must
have been committed by two or more gang members. (§ 186.22, subds. (e)(1),
(f).) It is not a separate element. (People v. Delgado (2022) 74 Cal.App.5th
1067, 1088.)
7 Currently, there is a split in authority on establishing two or more
predicate offenses “committed on separate occasions by two or more
members” — an element necessary for demonstrating gang members
collectively engage in a pattern of criminal activity. (§ 186.22, subd. (e)(1).)
In People v. Delgado, supra, 74 Cal.App.5th at page 1089, the court
determined each predicate offense must be committed by more than one
person. The court in People v. Clark (2022) 81 Cal.App.5th 133, review
granted October 19, 2022, S275746, concluded “there are two options for
establishing the requisite pattern: (1) prove two different gang members
13
already took judicial notice of Myers’s court file, including the minutes
indicating she pled guilty to felony assault and admitted a section 186.22,
subdivision (b) gang enhancement. That same file documents the conviction
of Ander Mazariegos, who also pled guilty to felony assault and admitted
the gang enhancement on the same offense. (People v. Meza (2011)
198 Cal.App.4th 468, 477 [error was minor where it was remedied by taking
judicial notice of court file in prior proceeding].) Rodas-Gramajo nonetheless
insists substantial evidence would be needed to establish Mazariegos’s 18th
Street gang membership under the current law. Not so. An officer would
simply (and briefly) testify Mazariegos admitted 18th Street gang
membership. And in any event, Mazariegos’s guilty plea to the gang
enhancement presents circumstantial evidence regarding his gang
membership. (People v. Superior Court (Jurado), supra, 4 Cal.App.4th
at p. 1226 [existence of elements of charged crime may be demonstrated at
a preliminary hearing by circumstantial evidence supporting reasonable
inferences made by a magistrate].)
Second, the evidence necessary to establish the gang derived more than
a reputational benefit from the predicate offenses is similarly minor.
Regarding the 2017 assault, evidence presented at the preliminary hearing
already established Rodas-Gramajo and Hernandez-Gonzalez targeted a
known member of a rival gang. Since “targeting a perceived or actual gang
rival” is a recognized common benefit to the gang under the Assembly Bill
333 amendments, additional testimony is unnecessary to establish the
offense’s benefit to the 18th Street gang was more than reputational.
separately committed crimes on two occasions; or (2) prove two different gang
members committed a crime together on a single occasion.” (Id. at p. 144.)
For the purposes of this opinion, we assume that a predicate offense must
have been committed by two gang members.
14
(§ 186.22, subd. (g).) For the 2019 offense, an officer would testify to limited
details of the offense. Specifically, the victim’s friend invited members of the
18th Street gang, including Myers and Mazariegos, to a hotel where they
were drinking, the victim refused to let them in the room, the gang members
kicked in the door, entered the hotel room, and personally struck him
multiple times while yelling 18th Street gang slurs. Based on those facts, the
People’s expert would opine the assault was retaliatory — instigated because
the victim acted disrespectfully towards the gang members — thus
benefitting the 18th Street gang. (§ 186.22, subd. (g) [retaliation is a
recognized common benefit].)
Third, preliminary hearing evidence already provided the lion’s share
of proof demonstrating the 18th Street gang derived more than a reputational
benefit from Rodas-Gramajo’s charged offense. Although the victim was not
an 18th Street gang member, he possessed gang-affiliated paraphernalia,
such as shoelaces made from a blue bandana and a lanyard key ring with the
Raider’s logo. Testimony also established that people who wear gang attire
without being a gang member were seen by actual gang members as
disrespectful. By asking the victim to “represent,” Rodas-Gramajo demanded
the victim disclose his gang affiliation. Rodas-Gramajo also called the victim
a “snitch.” Considered in its totality, there was sufficient evidence the
assault was retaliatory or to target a perceived or actual gang rival.
(§ 186.22, subd. (g); People v. Mower, supra, 28 Cal.4th at p. 473.) The
People’s offer of proof proposed additional expert opinion testimony, based
primarily on this existing evidence, that the offense was in retaliation for the
false representation of 18th Street gang membership and to deter others from
similarly falsely representing themselves as gang members. The additional
15
showing to satisfy the amended common benefit element is minor compared
to the existing evidence. (Caple, supra, 195 Cal.App.3d at p. 602.)
The missing evidence does not go to the core of the gang allegation,
contrary to Rodas-Gramajo’s assertions. The circumstances in Garcia v.
Superior Court, supra, 177 Cal.App.4th 803 are not comparable. In that case,
the remand involved a substantial rehearing of evidence regarding a resisting
an officer charge. The preliminary hearing contained facts for some of the
elements — the officer was performing his duties, and defendant knew or
reasonably should have known there was an officer performing his duties.
(Id. at p. 819.) But there were no facts from which a magistrate could infer
the defendant willfully resisted, delayed, or obstructed a peace officer. (Ibid.)
Testimony was thus necessary to establish the defendant was subject to a
lawful detention, the officer attempted to detain the defendant, and the
defendant ignored the attempt to lawfully detain him, all elements the court
deemed the core conduct for the offense of resisting arrest. (Id. at p. 821.)
Because this was the heart of the case, the omission was not minor. (Ibid.)
Here, to prove the gang enhancement, the People must establish
Rodas-Gramajo committed a felony for the benefit of, at the direction of, or in
association with a criminal street gang with the specific intent to promote,
further, or assist criminal conduct by gang members. (§ 186.22, subd. (b)(1).)
Rather than going to the heart of the gang allegation, the missing
information related to subcategories to establish the existence of a criminal
street gang — whether the predicate offenses necessary to establish a pattern
of criminal activity were committed by two or more gang members and
whether the gang derived more than a reputational benefit from the
predicate and charged offenses. Unlike in Garcia v. Superior Court,
reopening “the preliminary hearing proceedings in this context does not
16
permit the prosecutor a second chance to fill ‘an evidentiary vacuum
concerning the gravamen of the offense.’ ” (Mendoza, supra, 91 Cal.App.5th
at p. 60.) And in any event, as described above, the evidence offered at the
preliminary hearing established virtually all of the necessary elements.
(People v. Meza, supra, 198 Cal.App.4th at p. 477.)
Next, the trial court’s finding that the errors could be corrected
expeditiously without substantially rehearing the testimony finds support in
the record. (Tharp, supra, 154 Cal.App.3d at p. 219.) The People stated the
anticipated additional testimony would take approximately one hour. (The
People obviously could not control the length of Rodas-Gramajo’s cross-
examination, but that could be manipulated and extended to always defeat
remand.) This amount, compared to the approximately 156 transcript pages
for the preliminary hearing, is relatively minor. More importantly, as
discussed above, the additional testimony would not be a relitigation of a
substantial portion of the evidence. (Mendoza, supra, 91 Cal.App.5th at
p. 60; cf. Loverde v. Superior Court (1984) 162 Cal.App.3d 102, 106 [remand
improper if it results in “a lengthy rehearing of a substantial portion of the
evidence”].) It would merely supplement the gang enhancement evidence
already in the preliminary hearing record. (Caple, supra, 195 Cal.App.3d at
p. 602.) We disagree with Rodas-Gramajo’s assertion that obtaining this
additional evidence would take as long or longer than the preliminary
hearing. Thus, the requirements for granting a section 995a remand were
met — that is, there was a minor omission, and it could be cured
expeditiously.
The People urge us to hold that a section 995a remand is the
appropriate remedy at the pretrial stage whenever there is a change in the
law between the preliminary hearing and the jury trial. Such a rule would be
17
inappropriate, and we decline to so hold. “[D]etermining whether an
omission is minor must be done on a case by case basis” (Caple, supra,
195 Cal.App.3d at p. 602) because “finding a bright line of demarcation to
provide courts with guidelines in applying section 995a is an impossible
task.” (Tharp, supra, 154 Cal.App.3d at p. 219.) “The statute lends itself to
an ‘I know it when I see it’ approach.” (Id. at p. 219, fn. 8.) Here, only after
examining the evidence already in the preliminary hearing record and
comparing it to the information necessary to specifically support a reasonable
suspicion Rodas-Gramajo engaged in his charged offense in association with
and to benefit a criminal street gang, were we able to determine section 995a
remand was appropriate. (Mendoza, supra, 91 Cal.App.5th at p. 60.)
We also reject Rodas-Gramajo’s contention that the trial court failed to
produce a remand order to guide the magistrate on remand as required by
section 995a. Specifically, the court must “state in its remand order which
minor errors it finds could be expeditiously cured or corrected.” (§ 995a,
subd. (b)(1).) During the hearing on Rodas-Gramajo’s motion, the court
identified the proffered evidence with specificity — “presentation of a second
defendant in the same case for which the People already presented evidence,
and expert testimony as to whether or not that crime by both defendants
resulted in a benefit, beyond reputation, to the gang, and a witness testifying
as to whether the present case resulted in a benefit to the gang beyond
reputation.” It then stated, “[t]he evidence [the People] may present at the
preliminary hearing is limited to that that I’ve addressed here in terms of the
witnesses that may testify. [¶] I’m not going to micro-examination [sic] how
many exact questions the People can ask that witness.” The court’s remand
instructions were sufficiently specific.
18
Finally, there is no merit to Rodas-Gramajo’s argument that a section
995a remand violates the one-continuous-session rule under section 861.
That section requires a preliminary examination to be completed at one
session, otherwise the complaint shall be dismissed absent good cause for the
postponement. (§ 861, subd. (a).) A “session” is “ ‘an actual sitting continued
by adjournments in ordinary course from day to day, or over Sundays and
holidays, but not interrupted by adjournment to a distant day.’ ” (In re Karpf
(1970) 10 Cal.App.3d 355, 365.) That requirement “ensur[es] that one does
not languish unnecessarily in custody, or under the cloud of a criminal
complaint, without a judicial finding of probable cause.” (Stroud v. Superior
Court (2000) 23 Cal.4th 952, 965.) Here, there was a finding of probable
cause before the new Assembly Bill 333 gang enhancements became effective
and Rodas-Gramajo filed his section 995 motion to dismiss the information —
there was no postponement. And in any event, by allowing “further
proceedings” upon a motion by a prosecuting attorney, section 995a implicitly
authorizes an exception to the one-continuous-session rule. (§ 995a,
subd. (b)(1); Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles
(2012) 55 Cal.4th 783, 805 [“ ‘A court must, where reasonably possible,
harmonize statutes, reconcile seeming inconsistencies in them, and construe
them to give force and effect to all of their provisions’ ”].) A contrary
construction would entirely preclude a limited remand under any
circumstances, nullifying section 995a.
DISPOSITION
The petition for the writ is denied. The previously issued stay is
dissolved at the issuance of the remittitur.
19
_________________________
Rodríguez, J.
I CONCUR:
_________________________
Petrou, J.
A166375
20
TUCHER, P. J., Concurring in the result:
The Legislature tightened the requirements for proving a gang
enhancement after petitioner Brian Rodas-Gramajo’s preliminary hearing,
but before his trial on charges that included the gang enhancement. (See
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333); Pen. Code,
§ 186.22, subd. (b)(1); undesignated statutory references are to this code.)
Not having anticipated at the preliminary hearing this change in the law, the
People had not introduced evidence to prove certain elements now required
for the gang enhancement, so petitioner brought a motion to dismiss the
enhancement. The trial court correctly responded by ordering the matter
remanded to the magistrate who had committed petitioner, to see whether
the People could make good on their proffer of evidence establishing probable
cause for the newly added elements. Without waiting for this hearing
Petitioner sought extraordinary writ relief, asking that we enjoin any further
proceedings in the case against him. I agree with my colleagues that the writ
must be denied, but write separately to explain my reasoning.
In brief, I conclude that In re Estrada (1965) 63 Cal.2d 740 (Estrada)
entitles petitioner to have the gang enhancement struck unless, on remand to
the magistrate, the People establish probable cause for the newly added
elements. The trial court’s limited remand to the magistrate was proper here
for the same reason our Supreme Court has affirmed conditional reversals
and limited remands with other defendants granted relief under Estrada.
(See, e.g., People v. Frahs (2020) 9 Cal.5th 618, 637–640 (Frahs) [remand to
determine eligibility for new mental health diversion]; People v. Stamps
(2020) 9 Cal.5th 685, 700 (Stamps) [remand to enable trial court to exercise
new discretionary authority to strike serious felony enhancement].) Although
petitioner’s new hearing will bear some resemblance to a hearing under
1
section 995a, subdivision (b)(1) (section 995a(b)(1)), I would not analyze
petitioner’s motion pursuant to the procedures and constraints of sections 995
and 995a. In my view, the motion is a nonstatutory motion to dismiss
pursuant to Estrada, and the taking of supplemental evidence is proper
without regard to whether that evidence is “minor,” as that term is used in
section 995a(b)(1), or the other requirements of section 995a are met.
I.
“When new legislation reduces the punishment for an offense, we
presume that the legislation applies to all cases not yet final as of the
legislation’s effective date.” (People v. Esquivel (2021) 11 Cal.5th 671, 673,
citing Estrada, supra, 63 Cal.2d 740.) As Estrada explains, “[w]hen the
Legislature amends a statute so as to lessen the punishment it has obviously
expressly determined that its former penalty was too severe and that a
lighter punishment is proper . . . .” (Id. at p. 745.)
Estrada applies to Assembly Bill 333, rendering it retroactive to all
cases not yet final as of January 1, 2022. (People v. Tran (2022) 13 Cal.5th
1169, 1206–1207; see also People v. Lopez (2021) 73 Cal.App.5th 327, 343;
People v. Ramos (2022) 77 Cal.App.5th 1116, 1126–1127.) Where the
evidence presented at trial is insufficient to sustain a gang enhancement
under the current version of section 186.22, a defendant is entitled to have
the enhancement reversed and the matter remanded for retrial under the
current statute. (Tran, at p. 1207; Lopez, at pp. 344–348; Ramos, at p. 1128.)
But the Tran line of cases addresses convictions obtained before the
ameliorative amendments took effect. They do not directly address the
validity of a commitment order, lawfully issued before January 2022, for a
defendant who has yet to face trial.
2
“The Estrada rule only answers the question of whether an amended
statute should be applied retroactively. It does not answer the question of
how that statute should be applied.” (Stamps, supra, 9 Cal.5th at p. 700.)
Supreme Court precedents supply some guidance in answering the “how”
question. In Stamps, our Supreme Court applied Estrada to a statute that
gave sentencing courts new discretionary authority to strike serious felony
enhancements. (Stamps, at pp. 692, 699 [addressing Senate Bill No. 1393
(2017–2018 Reg. Sess.)].) The Court concluded the legislation was retroactive
to a case in which, before the statute took effect, the defendant entered a plea
agreement for a specified term that included such an enhancement. (Stamps,
at p. 692.) Stamps held that, on the defendant’s request, the case must be
remanded for the trial court to decide whether to exercise its newly-granted
discretion and strike the serious felony enhancement; but where the trial
court decides to strike the prior, the prosecution may elect either to accept
the resulting downward departure in sentence or to withdraw from the plea
agreement. (Id. at p. 707.) Although the Legislature was presumed to have
intended retroactive application of its ameliorative reform, the Court found
no evidence “the Legislature intended to overturn long-standing law that a
court cannot unilaterally modify an agreed-upon term by striking portions of
it under section 1385.” (Stamps, at p. 701.) The Estrada remedy therefore
had to accommodate this legal principle.
In other cases applying Estrada, the Supreme Court has likewise
prescribed limited remand, tailored to harmonize with existing principles of
criminal procedure. For example, after a citizen’s initiative altered the legal
standard for transferring juveniles alleged to have committed crimes to adult
court, the Supreme Court in People v. Superior Court (Lara) (2018) 4 Cal.5th
299 (Lara) “endorsed a limited remand procedure . . . to allow the juvenile
3
court to conduct a transfer hearing under Proposition 57.” (Frahs, supra,
9 Cal.5th at p. 637, citing Lara, at pp. 309–310.) If the juvenile court
concludes at the new transfer hearing that the youth is properly transferred
to a court of criminal jurisdiction, even under the standards of Proposition 57,
then proceedings in criminal court must resume; otherwise the case proceeds
in juvenile court. (Lara, at pp. 310–314 [endorsing remedy of People v. Vela
(2017) 11 Cal.App.5th 68, 82, judg. vacated and cause remanded (2018)
229 Cal.Rptr.3d 345, reaffd. (2018) 21 Cal.App.5th 1099].) And in Frahs,
after the Legislature enacted a mental health diversion statute, the Court
affirmed conditional reversal of the conviction and sentence of a defendant
seeking diversion under the statute. (Frahs, at pp. 637–640 [addressing
§ 1001.36].) The limited remand there was to allow the trial court to
determine whether the defendant was an appropriate candidate for diversion;
his conviction would be reinstated only if, on remand, he was found ineligible
for diversion or he failed successfully to complete it. (Frahs, at p. 637.)
The common denominator in these cases is that defendants must be
given the opportunity to avail themselves of ameliorative changes in the law
in a manner that affords them complete relief, but also in a manner that
respects as much as possible the procedural paths their cases took before the
ameliorative statutes took effect. (See, e.g., Stamps, supra, 9 Cal.5th at
p. 701.) Petitioner contends the appropriate procedural response in this case
is to dismiss the information pursuant to section 995 because the
requirements of section 995a(b)(1) are not met. I view that outcome as
inconsistent with the Estrada line of cases, and I doubt the appropriateness
of analyzing this case in terms of sections 995 and 995a since petitioner was
lawfully committed on a showing of probable cause at the close of his
preliminary hearing. I would instead treat petitioner’s motion as a
4
nonstatutory motion to dismiss, rendering the constraints of section
995a(b)(1) irrelevant.
II.
A.
My reasons for doubting the applicability of sections 995 and 995a in
providing relief under Estrada begin with the language of the statutes.
Section 995 authorizes a motion to set aside an indictment or
information in specified circumstances, subject to the corrective mechanism
of section 995a, subdivision (b). An information “shall be set aside” in either
of two circumstances, if (i) “before the filing thereof the defendant had not
been legally committed by a magistrate,” or (ii) “the defendant had been
committed without reasonable or probable cause.” (§ 995, subd. (a).) Note
the verb tense here. “[H]ad been committed” is the past perfect, meaning it
refers to something that happened before an event that was also in the past.
(§ 995, subd. (a)(2)(B) (§ 995(a)(2)(B)).) In our statutory scheme, a magistrate
decides to hold over, or “commit[],” a defendant on the charged offenses at the
conclusion of a preliminary hearing, after which an information may be filed.
(§ 739.) So, the most natural reading of section 995(a)(2)(B) seems to me that
an information must be set aside if “the defendant had been committed
without reasonable or probable cause” at the time when the commitment
order was originally made, before the filing of the information.
(§ 995(a)(2)(B).) The question, in short, is whether the magistrate made a
mistake in finding probable cause.
The language of section 995a confirms, rather than undermines, this
backward-looking focus in section 995. Section 995a(b)(1) authorizes the
court to remand a case for further proceedings to correct “minor errors of
omission, ambiguity, or technical defect.” I see no “error[]” in the failure of
5
the prosecution to introduce at the preliminary hearing evidence that was
wholly unnecessary under the then-prevailing definition of the gang
enhancement. At the preliminary hearing, the prosecutor’s task was to
establish probable cause for the crimes and enhancements it had alleged
against Rodas-Gramajo, not to anticipate the Legislature’s future decision to
rewrite an applicable statute. And although the Attorney General points out
that section 995a(b)(1) uses the present tense in conditioning remand on a
finding that errors “are minor,” that phrase changes nothing. Errors that
were minor when made remain minor at the time when a section 995 motion
is being considered. But a defendant who “had been committed” on a
sufficient showing of probable cause was not committed in error.
Here, petitioner does not allege that he “had been committed
without . . . probable cause.” Rather, he alleges there is no currently valid
holding order because Assembly Bill 333 amended the definition of the gang
enhancement in a manner that renders the previously presented evidence
insufficient. Petitioner’s supplemental brief asserts that section 995’s use of
the past perfect tense “is intended to limit the evidentiary basis for the
challenge,” which is fixed at the preliminary hearing, but somehow is “not
intended to limit the legal basis for the challenge.” I see no basis in the
statutory language for splitting the commitment order’s legal and factual
predicates in this manner. The statutory phrase “committed without
reasonable or probable cause” refers to an application—or misapplication—of
law to the evidence presented.
B.
Established precedent supports only the first half of petitioner’s
argument, that the evidentiary basis for a 995 motion is fixed at the
preliminary hearing. Courts have long maintained that “ ‘[t]he purpose of a
6
motion to set aside the accusatory pleading under Penal Code section 995 is
to review the sufficiency of the . . . information on the basis of the record
made before. . . the magistrate at the preliminary hearing.’ ” (Stanton v.
Superior Court (1987) 193 Cal.App.3d 265, 269 (Stanton).) In deciding such a
motion, the court should confine its review “solely” to the preliminary hearing
transcript (id. at p. 270), including as augmented pursuant to section 995a. I
have no quarrel with this proposition. But, with only one exception, neither
Stanton nor the other cases the parties cite support the other half of
petitioner’s argument: that the court should decide a section 995 motion
using a definition of the crime that was not the law when the magistrate
entered the commitment order.
The exception is a very recent decision that also addresses the
retroactive effect of Assembly Bill 333 on a defendant who has had a
preliminary hearing but not a trial. (Mendoza v. Superior Court (2023)
91 Cal.App.5th 42 (Mendoza).) The Mendoza court concludes, as do I, that
the sufficiency of the preliminary hearing evidence should be assessed under
current section 186.22 after the prosecution has had an opportunity to
supplement it with evidence responsive to the statutory change. (Mendoza,
at p. 54.) Mendoza rests this conclusion on two legal theories, concluding
that any deficiency in the evidence resulting from the statutory change is a
“ ‘minor error[] of omission’ ” under section 995a(b)(1), or that the same
remedy is available under the court’s authority to “ ‘remand the cause to the
trial court for such further proceedings as may be just under the
circumstances.’ ” (Mendoza, at pp. 58 [quoting § 995a(b)(1)] & 60 [quoting
§ 1260].) As explained further below, I prefer the second of Mendoza’s
theories.
7
Other than Mendoza, In re Kowalski (1971) 21 Cal.App.3d 67 is the
case that comes closest to supporting petitioner’s theory. Kowalski held that
a trial court abused its discretion by granting the same section 995 motion to
dismiss that another judge on the same court had previously denied because,
Kowalski concluded, no change of circumstances justified the defendant in
renewing his motion. (Id. at pp. 70–71.) That holding isn’t relevant here
because petitioner was not attempting to renew a previously rejected 995
motion. But in dicta, the Kowalski court hypothesized that changed
“circumstances might exist . . . if there were a substantial change in the law
between the time of the first and second motions, which made inadmissible
much of the testimony considered by the grand jury or magistrate.”
(Kowalski, at p. 70.) Petitioner then cites Menifee v. Superior Court (2020)
57 Cal.App.5th 343 as an example of the circumstance Kowalski “predicted,”
in that Menifee involved a 995 motion filed after People v. Sanchez (2016)
63 Cal.4th 665 rendered inadmissible certain evidence from a preliminary
hearing held before Sanchez was decided. (Menifee, at p. 356.) Menifee
affirmed denial of the 995 motion only because sufficient evidence remained
in the record after disregarding the evidence that was inadmissible under
Sanchez. (Menifee, at pp. 349–350, 359–365.)
Menifee and the dicta in Kowalski do not support petitioner’s argument
that a new statute should be applied retroactively in deciding a section 995
motion. Both cases are unremarkable applications of the well-known
principle that a new judicial decision generally applies in all cases not yet
final because “ ‘[a] judicial construction of a statute [or constitutional
provision] is an authoritative statement of what the statute [or constitutional
provision] meant before as well as after the decision of the case giving rise to
that construction.’ ” (McClung v. Employment Development Dept. (2004)
8
34 Cal.4th 467, 474, quoting Rivers v. Roadway Express, Inc. (1994) 511 U.S.
298, 312–313; see also People v. Guerra (1984) 37 Cal.3d 385, 400
[“ ‘convictions should ordinarily be tested on appeal under the law then
applicable, not the law prevailing at the time of trial’ ”]; People v. Jeffrey G.
(2017) 13 Cal.App.5th 501, 507 [applying Sanchez on appeal, though it
“significantly change[d]” the law that prevailed at trial].) Here, we confront a
legislative amendment to the definition of the gang enhancement, a statutory
change that applies retroactively only by virtue of Estrada. (See Lara, supra,4 Cal.5th at p. 311 [Estrada informs application of “ ‘the default rule of
prospective operation’ ” for statutes].) A new statute is generally not applied
retroactively, absent clear direction from the Legislature that it intends
retroactivity. (People v. Brown (2012) 54 Cal.4th 314, 319 [discussing this
“time-honored principle”].) Thus, Kowalski and Menifee are not authority for
applying a newly enacted statute in deciding a motion pursuant to section
995.
C.
Perhaps the most compelling reason to avoid section 995 as the vehicle
for providing petitioner Estrada relief is not the poor fit with the language of
section 995(a)(2)(B), nor the absence of case law supporting that approach.
The biggest stumbling block is the set of constraints that section 995a
imposes before the court may consider new evidence. I consider these
constraints wholly inapplicable to providing relief under Estrada.
First, section 995a(b)(1) allows the trial court to take additional
evidence (or to remand to the magistrate for that purposes) only if it finds the
errors in an information to be “minor errors of omission, ambiguity, or
technical defect which can be expeditiously cured or corrected . . . .” But, of
course, the Legislature is free to make far-reaching changes in the definition
9
of an existing crime or enhancement, potentially necessitating significant
additional evidence to establish probable cause for a defendant properly
committed under prior law. In the face of such an ameliorative amendment,
Estrada gives the defendant the right to seek dismissal, but not without the
prosecution having the right to prevent dismissal if it has evidence
establishing probable cause for the newly added elements. (See People v.
Eagle (2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment adds
an additional element to an offense, the prosecution must be afforded the
opportunity to establish the additional element upon remand”]; People v.
Figueroa (1993) 20 Cal.App.4th 65, 71 [“The People are entitled to an
opportunity to prove” additional elements on remand]; Kuhnel v. Appellate
Division of Superior Court (2022) 75 Cal.App.5th 726, 736, review granted
June 1, 2022, S274000 [“Estrada teaches that we should avoid imposing
punishment the Legislature has determined to be excessive [citation], but it
does not require us to play ‘gotcha’ with the prosecution”].) I see no reason to
require the prosecution to establish the additional evidence is “minor” and
can be “expeditiously” presented, as long as it is necessary to address changes
the Legislature has made to the definition of a crime or enhancement.
(§ 995a(b)(1).)
Nor do I see any reason the procedures available for providing Estrada
relief should vary from one case to another, depending on the amount of
additional evidence necessary to meet new elements of an enhancement. And
here, I would not stretch the definition of a “minor” omission until it reaches
the quantum of testimony required. Petitioner’s original preliminary hearing
lasted two half-days, and the trial court hearing petitioner’s motion assessed
the presentation of evidence responsive to Assembly Bill 333 as requiring
“half a day or less, including cross-examination.” This is potentially half as
10
much testimony as the entire original preliminary hearing and not, in my
view, comparatively minor.
Second, section 995a(b)(1) is a remedy that can be used only once. (See
§ 995a, subd. (b)(3) [“The procedure specified in this subdivision may be
utilized only once for each information”].) Consider a case in which, before
the passage of Assembly Bill 333, the prosecution discovered a truly minor
error or omission in the preliminary hearing evidence and successfully
employed section 995a(b)(1) to remedy it. In that hypothetical case, the
prosecution would be foreclosed from reopening the preliminary hearing to
introduce evidence that became essential after Assembly Bill 333 amended
the definition of the enhancement. I see no reason to engraft section
995a(b)(1)’s single-use constraint onto an Estrada remedy.
Third, section 995a(b)(1)’s remedy is available only where the
prosecution proceeds by way of information, rather than indictment.
Although both charging documents can be challenged with a section 995
motion (§ 995, subd. (a)(1) & (2)), a hearing to take additional evidence under
section 995a(b)(1) is available only to correct an information. (See § 995a,
subd. (b)(1) [“Without setting aside the information, the court may, upon
motion of the prosecuting attorney, order further proceedings to correct
errors . . .” (italics added)].) Where section 995a addresses indictments, it is
much less generous regarding error correction. The statute allows
indictments to be corrected regarding “the names of the witnesses examined
before the grand jury,” but does not provide for correcting other errors of
omission. (§ 995a, subd. (a).)
Based on these considerations, I would not rely on sections 995 and
995a to provide defendants the relief to which they are entitled under
11
Estrada, especially because I see a better alternative, readily available in our
case law.
III.
In a variety of contexts, California courts have recognized an
alternative to section 995 for pretrial dismissal of criminal charges. Where
section 995 does not apply because, for example, “the deprivation of a
substantial right is not shown in the transcript of the preliminary hearing,
the nonstatutory motion to dismiss is the proper device to raise the issue.”
(Stanton, supra, 193 Cal.App.3d at p. 271.) A nonstatutory motion to dismiss
is appropriate for bringing an equal protection challenge to criminal
prosecutions motivated by racial and anti-union bias. (Murgia v. Municipal
Court (1975) 15 Cal.3d 286, 293–294, fn. 4, superseded by statute on another
ground as stated in Young v. Superior Court (2022) 79 Cal.App.5th 138, 155–
156.) It is appropriate where probable cause has not been “determined on the
basis of competent, legally obtained evidence,” in that some of the evidence
before a grand jury was the subject of a successful motion to exclude under
section 1538.5. (People v. Sherwin (2000) 82 Cal.App.4th 1404, 1410
(Sherwin).) It was proper for enforcing compliance with a statute that once
forbade the state from charging a defendant with welfare fraud before it had
sought restitution. (People v. McGee (1977) 19 Cal.3d 948, 968 & fn. 9.) And
in one final example, this division reaffirmed in People v. Gutierrez (2013)
214 Cal.App.4th 343 (Gutierrez) that a nonstatutory motion to dismiss is an
appropriate vehicle for raising a breach of the prosecutor’s obligation to
disclose exculpatory information under Brady v. Maryland (1963) 373 U.S. 83before preliminary hearing. (Gutierrez at p. 348–349; see also Stanton at
p. 271.)
12
I would hold that a nonstatutory motion to dismiss is also the
appropriate mechanism for providing relief under Estrada after a
preliminary hearing but before trial. Unlike a simple 995 motion, a
nonstatutory motion to dismiss is not confined solely to the record at the
preliminary examination. (Gutierrez, supra, 214 Cal.App.4th at pp. 348–
349.) Additional evidence made newly relevant by adoption of an
ameliorative reform like Assembly Bill 333 may be introduced. A
nonstatutory motion to dismiss does not require that the court first find the
newly proffered evidence to be minor, or that supplementation pursuant to
section 995a had not previously occurred. Instead, evidence can be taken to
the full extent required in response to the Legislature’s action. Finally, a
nonstatutory motion to dismiss is equally available when the prosecution has
proceeded by way of indictment. (See, e.g., Sherwin, supra, 82 Cal.App.4th at
p. 1410.)
Trial courts “possess a constitutionally conferred, inherent authority to
‘create new forms of procedure’ in the gaps left unaddressed by statutes and
the rules of court.” (People v. Lujan (2012) 211 Cal.App.4th 1499, 1507.)
Here, no great innovation is required, as the nonstatutory motion to dismiss
is a tool sitting ready at hand. The Attorney General takes the position that
both a 995 motion and a nonstatutory motion to dismiss are appropriate
vehicles for providing Estrada relief. But as part of accepting a 995 motion,
the Attorney General construes section 995a(b)(1) to allow reopening of a
preliminary hearing to the extent necessary to accommodate changes in the
law. (See also Mendoza, supra, 91 Cal.App.5th at p. 58 [same].) And the
Attorney General would have courts waive application of subdivision (b)(3) of
section 995a when it would otherwise apply, for example because the
prosecution had previously fixed a minor error in the preliminary hearing
13
evidence, or the Legislature had redefined a crime or enhancement more than
once while a case was pending. Petitioner, for his part, insists that all the
constraints of section 995a must apply and the prosecution must be required
to dismiss the information, or at least the affected enhancement, if the
evidence necessitated by the statutory change is more than minor. But in an
unexplained concession, petitioner offers the “caveat . . . that should the
prosecution elect to dismiss and re-file the charges, such a dismissal would
not prevent a future prosecution under section 1387.”1 Nothing in Assembly
Bill 333 suggests the Legislature intended that we ignore these existing
provisions in the Penal Code. So, rather than performing elective surgery on
section 995, section 995a, or section 1387, I would simply construe
petitioner’s motion as a nonstatutory motion to dismiss and allow the
additional testimony without regard to the requirements of an inapplicable
statute.
I recognize that Currie v. Superior Court (1991) 230 Cal.App.3d 83disavowed any judicial authority to order “a testimonial remand to the
magistrate, except as authorized by statute” (id. at p. 92), but Currie does not
stand in the way of taking testimony in response to a motion seeking relief
under Estrada. Like Stanton and Gutierrez, Currie involved a nonstatutory
motion to dismiss that was brought on grounds the prosecution had failed to
disclose exculpatory evidence before preliminary hearing. (Currie, at p. 88.)
The superior court purported to grant the motion, concluding the defendant’s
right to cross-examine an important witness had been impaired. But instead
of then dismissing the information, the trial court remanded the matter to
1 With certain exceptions, section 1387 provides that if a felony case
has twice been dismissed under section 995 or specified other provisions of
law, it may not be refiled.
14
the magistrate to fill the evidentiary gap, allowing additional preliminary
hearing testimony. (Ibid.) This was error, the Currie court held, because no
appellate decision had ever authorized the reopening of a preliminary
hearing except pursuant to statute. (Id. at p. 92.) Of course, cases are not
authority for propositions they do not consider (In re Bailey (2022)
76 Cal.App.5th 837, 853), and Currie did not address the appropriate
procedure for addressing a pretrial, post-preliminary hearing, ameliorative
amendment to a governing statute. The remedy I propose does not, as did
the superior court in Currie, authorize the reopening of a preliminary hearing
to make up for a prosecutor’s earlier mistake.
Instead, I would authorize a trial court or magistrate, as appropriate,
to hold a hearing analogous to a hearing pursuant to section 995a(b)(1), but
for a different purpose. Rather than to correct minor errors, evidence would
be taken on the motion to dismiss only as necessary to inform the judicial
determination of probable cause on elements added to the definition of the
gang enhancement. If the evidence fails to establish probable cause for any
new element of the enhancement, then Estrada entitles the petitioner to have
the enhancement struck from the information. But if the new evidence,
considered alongside the evidence from the preliminary hearing, establishes
all elements of the enhancement as current law defines it, then the case may
proceed to trial.
TUCHER, P. J.
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Trial Court: The Superior Court of California, County of Marin
Trial Judge: Hon. Geoffrey M. Howard
Counsel: Matthew A. Siroka for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A.
Rivlin, Charlotte Woodfork, Eric D. Share and Karen Z. Bovarnick, Deputy
Attorneys General, for Real Party in Interest.
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