Hernandez v. Super. Ct. CA5

Filed 3/8/23 Hernandez v. Super. Ct. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MATTHEW HERNANDEZ,
F084917
Petitioner,
(Super. Ct. No. BF166977A)
v.
THE SUPERIOR COURT OF KERN COUNTY, OPINION
Respondent;
THE PEOPLE,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for writ of prohibition. Chad A. Louie,
Judge.
Peter Kang, Public Defender, and Nick Roth, Deputy Public Defender, for
Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Real Party in Interest.
-ooOoo-
* Before Poochigian, Acting P. J., Peña, J. and Snauffer, J.
Petitioner Matthew Hernandez was held to answer on five criminal charges and
enhancement allegations that he committed counts 1 through 3 for the benefit of a
criminal street gang. Approximately five years later, before a trial was held in
petitioner’s case, Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333)
modified the elements of proof required for a gang enhancement allegation. Petitioner
filed a motion to set aside the portion of the information containing the gang allegations.
The trial court denied the motion and petitioner filed the instant petition for writ of
prohibition. We issued an order to show cause why the relief petitioner seeks should not
be granted.
In his petition, petitioner asks us to order the trial court to set aside its prior ruling
on his motion and enter an order setting aside the gang enhancement allegations. The
parties agree that the evidence presented in the preliminary hearing is insufficient to hold
petitioner to answer on the gang enhancement allegations in light of the modifications
brought about by Assembly Bill 333. However, the People, real party in interest, argue
that the appropriate remedy is to set aside the court’s order denying petitioner’s motion
and remand the matter to allow the prosecution to prove the gang enhancement
allegations to the standard required by Assembly Bill 333. We vacate the portion of the
magistrate judge’s holding order holding petitioner to answer on the gang enhancement
allegations and remand the matter with directions to permit the prosecutor an opportunity
to prove the gang enhancement allegations to the standard required by Assembly
Bill 333.1
1 Petitioner also contends that the proof offered at the preliminary hearing was
insufficient to prove the gang enhancement allegation to the pre-Assembly Bill 333
standard. Because we conclude that Assembly Bill 333 is retroactive to petitioner’s case
and we accept the People’s concession that the evidence presented at the preliminary
hearing is insufficient to meet the standard set out in Assembly Bill 333, we need not
resolve petitioner’s contention regarding the sufficiency of the evidence under the
pre-Assembly Bill 333 standard or the People’s contention that the portion of petitioner’s
motion that addressed that issue was untimely.
2.
PROCEDURAL SUMMARY
On January 24, 2017, the Kern County District Attorney filed a criminal complaint
charging petitioner with two counts of possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1);2 counts 1 & 2), possession of ammunition by a felon (§ 30305,
subd. (a)(1); count 3), resisting arrest (§ 148, subd. (a)(1); count 4), and public
intoxication (§ 647, subd. (f); count 5). The complaint further alleged, as to counts 1
through 3, that petitioner committed the offenses for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).3
On February 6, 2017, petitioner was held to answer on all counts and enhancement
allegations.
On February 14, 2017, the Kern County District Attorney filed an information
alleging the same counts and enhancement allegations set out in the complaint. The
information also alleged that petitioner had suffered a prior felony “strike” conviction
within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)), which also qualified as a prior serious felony conviction (§ 667,
subd. (a)).
On July 19, 2022, petitioner filed a motion to set aside all gang enhancement
allegations contained in the information pursuant to section 995. He argued, in relevant
part, that insufficient evidence was presented at the preliminary hearing to support the
gang allegation enhancements under section 186.22, in light of the amendments made by
2 All further statutory references are to the Penal Code.
3 The complaint and information further alleged that petitioner had served prior
prison terms for offenses that were not sexually violent offenses. Effective January 1,
2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5,
subdivision (b) to limit application of prior prison term enhancements to only prior prison
terms that were served for sexually violent offenses as defined by Welfare and
Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019,
ch. 590, § 1.) The limited record before us does not reveal whether those prior prison
term allegations have been dismissed.
3.
Assembly Bill 333, to support a reasonable belief that (1) the criminal street gang
engaged in a pattern of criminal gang activity because the predicate gang offenses took
place more than three years prior to the charged offenses and (2) the firearm possession
offenses provided more than a reputational benefit to the criminal street gang.
On August 30, 2022, the trial court denied petitioner’s motion, reasoning in part
that the amendments to section 186.22 made by Assembly Bill 333 did not apply in the
context of evaluating whether sufficient cause existed to hold petitioner to answer on the
gang enhancement allegations because they were not in effect at the time of the
magistrate judge’s holding order.
On September 9, 2022, petitioner filed the instant petition.
PRELIMINARY HEARING4
On January 17, 2017, at approximately 8:45 p.m., City of Bakersfield Police
Officers John Bishop and Frank McIntyre were assigned to the gang unit and on patrol in
their marked patrol vehicle. Their patrol was in the area of two recent homicides. As
they patrolled, they received a call regarding shots fired in the area and a person with a
firearm at a nearby park. As they drove, they saw petitioner—wearing black or dark grey
pants, a camouflage jacket, “five or six shirts of multiple colors,” and black gloves—
walking in the roadway and illuminated him with their spotlight. Petitioner ran. Both
officers identified themselves as police officers and told petitioner to stop running.
Petitioner did not stop running. The officers gave chase. As petitioner ran, both officers
saw him manipulating items in the front of his waistband and jacket. As the officers
continued to follow petitioner, they saw petitioner discard a black item into an alley. The
alley was later searched, and other officers recovered a loaded, black nine-millimeter
semiautomatic firearm.
4 Our summary of the evidence presented at the preliminary hearing is limited to the
facts necessary to resolve the issues present in petitioner’s petition. It is not a
comprehensive summary of the evidence presented at the preliminary hearing.
4.
After discarding the nine-millimeter firearm, petitioner continued to run. As he
ran through a dirt lot, he discarded a silver item. From that area, McIntyre later
recovered a loaded, silver .22-caliber semiautomatic firearm.
Petitioner continued to run, fell once, and appeared to strike his head. Officers
eventually apprehended petitioner. The entire encounter lasted no longer than
two minutes. In his possession, they found two cans of alcohol and a pouch containing
nine-millimeter, .22-caliber, and 12-gauge ammunition. Petitioner appeared to be
intoxicated—his eyes were red and watery; his speech was thick and slurred; and officers
detected the odor of alcohol on his breath and person.
City of Bakersfield Police Officer Nestor Barajas testified as a gang expert at the
preliminary hearing. He spoke to known gang members and was familiar with the Loma
Bakers criminal street gang. He had contacted at least three Loma Bakers gang members.
When he contacted Loma Bakers gang members, he spoke to them about the crimes they
had already been convicted of and other crimes committed by Loma Bakers gang
members. They normally admitted to carjackings, car theft, and other property theft.
They also normally attributed more serious crimes like shootings, burglaries, robberies,
and murder to the gang itself. They acknowledged engaging in illegal gun possession
and narcotic sales. The Loma Bakers gang claimed a gang turf that included the area
where petitioner was arrested. The Loma Bakers gang had a hierarchy descending from
“shot callers,” to “foot soldiers,” and then “messengers.” The gang was affiliated with
the larger criminal street gangs the “Sureños” or “La Eme.” Loma Bakers “shot callers”
normally answered to “somebody higher” in the Sureños or La Eme. Those gangs all
identified with the number 13 and the colors dark blue and navy blue.
Barajas testified that petitioner had tattoos on his body that indicated his
association with the Loma Bakers gang. He had a tattoo on his right lower leg that read
“LBKS” and a tattoo of the word “Bakers” on the front of his torso, both of which
referred to the Loma Bakers street gang; a tattoo on his right upper arm that read “13,”
5.
indicating his association with the Sureños or La Eme; a tattoo of the words “Loma
Gage” on his back, the letter “G” on his right hand, and a joker or jester on one of his
arms with the words “Gage Street,” all relating to the Gage Street subset of the Loma
Bakers street gang; and a tattoo of the word “Loma” on his lower left leg, referring to the
Loma Bakers street gang. The Loma Bakers often also used the words, “Loma,” “Loma
Bakers,” “LBKS,” and “Gage Street” in their graffiti.
Barajas testified regarding prior crimes by Loma Bakers gang members. He
testified that on December 6, 2012, Carlos Bojorquez was arrested for gang participation
and possession of a firearm and ammunition after officers received a report that a person
was trespassing. Bojorquez was noted to have gang tattoos and was arrested “just
northwest of the border of the traditional boundaries” of the Loma Bakers street gang.
Based on that evidence, Barajas opined that Bojorquez was an active member of the
Loma Bakers street gang at the time of his arrest. Bojorquez eventually pled no contest
to possession of a firearm.
On April 30, 2011, officers responded to the shooting of a 16-year-old boy who
later died. Officers determined Emmanuel Toscano robbed the 16-year-old boy and later
shot him. Toscano had gang tattoos relating to the Loma Bakers street gang and the
Hillside subset of the Loma Bakers street gang. Barajas opined that Toscano was an
active member of the Loma Bakers street gang on the date he committed the offenses.
Toscano was convicted of murder, robbery, shooting at a dwelling, and gang
participation.
On August 28, 2016, petitioner, Michael Gonzales (who Barajas opined was an
active Loma Bakers street gang member based on his gang tattoos), and three women
were in a vehicle that attempted to evade law enforcement officers in a location very near
to the location of the charged offenses in this case. The vehicle eventually came to a stop
and the occupants fled. A loaded firearm was found discarded near the vehicle. Barajas
opined that petitioner’s presence in a vehicle with a Loma Bakers street gang member, in
6.
Loma Bakers territory, in possession of a firearm which was a primary activity of the
Loma Bakers street gang, all suggested that petitioner was an active Loma Bakers street
gang member.
On August 29, 2015, petitioner was contacted by law enforcement in the same
area. Petitioner possessed a concealed knife, dirk, or dagger. Possession of weapons was
a primary activity of the Loma Bakers street gang.
In the present case, petitioner possessed two firearms while in Loma Bakers
territory and fled from law enforcement officers. Based on the present incident and the
2015 and 2016 incidents, Barajas opined that petitioner was an active member of the
Loma Bakers street gang.
Barajas opined that a felon, who was also a member of the Loma Bakers street
gang, had Loma Bakers tattoos, possessed two firearms within Loma Bakers territory,
and fled from officers trying to make contact with him would illegally possess the
firearms for the benefit of the Loma Bakers street gang because it instills fear in rival
gang members and the general public, which benefits the gang by making it less likely
that they will report crimes. Displaying gang tattoos also benefitted the gang.
DISCUSSION
I. Statutory Background of Gang Enhancements
“ ‘In 1988, the Legislature enacted the California Street Terrorism Enforcement
and Prevention Act (STEP Act; § 186.20 et seq.) to eradicate “criminal activity by street
gangs.” ’ [Citation.] Among other things, the STEP Act created ‘a sentencing
enhancement for a felony committed “for the benefit of, at the direction of, or in
association with any criminal street gang” (§ 186.22, subd. (b)(1)).’ ” (People v. Tran
(2022) 13 Cal.5th 1169, 1205–1206 (Tran).) To prove the existence of a criminal street
gang necessary to sustain a gang enhancement, the People must establish, among other
things, that the members of the association or group in question engage in, or have
engaged in, a “pattern of criminal gang activity.” (§ 186.22, subd. (f).)
7.
In 2021, the Legislature passed Assembly Bill 333, also known as the STEP
Forward Act of 2021, which went into effect on January 1, 2022. (Stats. 2021, ch. 699,
§ 1.) As detailed by our Supreme Court in Tran, “Assembly Bill 333 made the following
changes to the law on gang enhancements[, among others]: First, it narrowed the
definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, organized
association or group of three or more persons.’ (§ 186.22, subd. (f), italics added.)
Second, whereas section 186.22, former subdivision (f) required only that a gang’s
members ‘individually or collectively engage in’ a pattern of criminal activity in order to
constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such pattern have
been ‘collectively engage[d] in’ by members of the gang. (§ 186.22, subd. (f), italics
added.) Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal
activity’ by requiring that (1) the last offense used to show a pattern of criminal gang
activity occurred [within three years of the prior offense and] within three years of the
date that the currently charged offense is alleged to have been committed; (2) the offenses
were committed by two or more gang ‘members,’ as opposed to just ‘persons’; (3) the
offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a
pattern of gang activity must be ones other than the currently charged offense. (§ 186.22,
subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to
have commonly benefitted a street gang, requiring that any ‘common benefit’ be ‘more
than reputational.’ (§ 186.22, subd. (g).)” (Tran, supra, 13 Cal.5th at p. 1206.)
II. Retroactive Application of Assembly Bill 333
The parties agree, as do we, that Assembly Bill 333 applies retroactively pursuant
to In re Estrada (1965) 63 Cal.2d 740, to all cases not yet final on appeal. (Tran, supra,
13 Cal.5th at pp. 1206–1207.) Pursuant to Estrada, absent contrary legislative intent,
ameliorative changes in law apply to all cases not yet final on appeal. (People v. Esquivel
(2021) 11 Cal.5th 671, 675.) “ ‘Assembly Bill 333 essentially adds new elements to the
substantive offense and enhancements in section 186.22—for example, by requiring
8.
proof that gang members “collectively engage” in a pattern of criminal gang activity, that
the predicate offenses were committed by gang members, that the predicate offenses
benefitted the gang, and that the predicate and underlying offenses provided more than a
reputational benefit to the gang ….’ [Citations.] These changes have the effect of
‘increas[ing] the threshold for conviction of the section 186.22 offense and the imposition
of the enhancement’ .…” (Tran, at p. 1207.)
III. Section 995 and Writ of Prohibition as Procedural Vehicles to Enforcing the
Changes to Section 186.22
At a preliminary hearing, a magistrate determines whether there is “sufficient
cause” to believe a defendant is guilty of all offenses and enhancements charged. (§ 871;
see § 872, subd. (a).) This is a threshold determination for allowing the prosecution to
proceed to trial against the defendant on those allegations. The mechanism for
challenging a magistrate’s sufficient cause determination is a motion to set aside or
dismiss under section 995. Denial of a section 995 motion is most appropriately
challenged by a petition for writ of prohibition. (§ 999a; see Hudson v. Superior Court
(2017) 7 Cal.App.5th 999, 1006.)
IV. Analysis
At the time of the preliminary hearing, the magistrate judge determined there was
sufficient cause to believe the gang enhancement allegations were true based on the
pre-Assembly Bill 333 version of section 186.22. In considering petitioner’s section 995
motion, the trial court declined to consider whether the evidence presented at the
preliminary hearing was sufficient to meet the requirements of section 186.22 as
amended by Assembly Bill 333. That determination was erroneous. The court should
have considered the merits of petitioner’s motion.
Because “following the denial of a section 995 motion, we review the preliminary
hearing magistrate’s determination directly and disregard the judge’s section 995 ruling,”
we must determine whether the evidence submitted at the preliminary hearing was
9.
sufficient to hold petitioner to answer on the gang enhancement allegations under
section 186.22 as amended by Assembly Bill 333. (See People v. Ramirez (2016) 244
Cal.App.4th 800, 813.) As the parties agree, no evidence was submitted at the
preliminary hearing regarding how the predicate offenses benefitted the Loma Bakers
street gang in a manner that was “more than reputational” (§ 186.22, subd. (g)), nor was it
proved that “the last of those offenses occurred within three years of the prior offense”
(§ 186.22, subd. (e)(1))—the predicate offenses for which evidence was submitted
occurred in 2011, 2012, and 2016. Petitioner contends that the failures of proof were
more extensive. However, because we agree with the parties that the proof submitted
was insufficient to meet at least the two requirements described above of section 186.22
as amended by Assembly Bill 333, we need not detail all the failures of proof. The
portion of the holding order holding petitioner to answer on the gang enhancement
allegations must be vacated and the matter remanded. On remand, the prosecution may
request continuation of the preliminary hearing pursuant to section 995a, subdivision
(b)(2). (See People v. Lopez (2021) 73 Cal.App.5th 327, 346; 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.”].) If the prosecution does not seek continuation of the
preliminary hearing, or does not prove the gang enhancement allegations in conformity
with section 182.66 as modified by Assembly Bill 333 during a continuation of the
preliminary hearing, the matter shall proceed on an amended information without the
gang enhancement allegations.
DISPOSITION
The portion of the magistrate judge’s holding order holding petitioner to answer
on the gang enhancement allegations on counts 1 through 3 is vacated and the matter is
remanded. On remand, the prosecution may request continuation of the preliminary
hearing pursuant to section 995a, subdivision (b)(2) to prove the gang enhancement
10.
allegations in compliance with the requirements of section 186.22 as amended by
Assembly Bill 333. Alternatively, the prosecution may elect to proceed on an amended
information without the gang enhancement allegations. We do not disturb the magistrate
judge’s holding order in any other respect.
11.