Mendoza v. Super. Ct.

Filed 5/3/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
GUADALUPE MENDOZA,
F084354
Petitioner,
v. (Super. Ct. No. BF170463A)
THE SUPERIOR COURT OF KERN COUNTY,
OPINION
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; Application for writ of mandate or prohibition.
Chad A. Louie, Judge.
The Law Office of A. Roxane Bukowski and A. Roxane Bukowski for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Christopher J.
Rench, Deputy Attorneys General, for Real Party in Interest.
-ooOoo-
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the subpart of the Factual and Procedural
Background titled “Preliminary Hearing Evidence.”
INTRODUCTION
Guadalupe Mendoza sought an alternative writ of mandate/prohibition after the
superior court denied his Penal Code section 995 motion to dismiss a charge for active
participation in a criminal street gang (§ 186.22, subd. (a)) and gang enhancements
(§ 186.22, subd. (b)(1)) attached to multiple counts. (Undesignated statutory references
are to the Penal Code.) In the motion, Mendoza argued the gang offense and
enhancements should be dismissed in light of the changes to section 186.22 effectuated
by Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which became
effective January 1, 2022. He asserted the gang offense and enhancements were proven
at the preliminary hearing under the former law, but the evidence presented at the
preliminary hearing was insufficient under the new definitions of “pattern of criminal
gang activity” and “criminal street gang” to support the charges. The court denied the
section 995 motion and, initially, we denied Mendoza’s writ petition from the court’s
order. Mendoza then petitioned the California Supreme Court for review, and the matter
was transferred back to us.
In its transfer order, the California Supreme Court directed us to vacate our order
denying the petition for writ of mandamus and to issue an order directing the respondent
superior court to show cause why the relief sought in the petition should not be granted.
Our court issued an order to show cause and the People filed a response conceding
Assembly Bill 333 should apply retroactively to the gang enhancements and substantive
charge alleged in this case. They argue the matter should be remanded and they should
be permitted the opportunity to conduct further preliminary hearing proceedings on the
substantive gang offense and gang-related enhancements. In his reply, Mendoza
contends Assembly Bill 333 requires us to dismiss the gang offense and enhancements.
However, he asserts the People may refile the information below.
We agree with the parties that Assembly Bill 333 applies retroactively to the
preliminary hearing proceedings. We reject Mendoza’s contention dismissal of all gang
2.
related charges is required. For the reasons set forth in this opinion, we will issue a writ
of mandate directing the respondent court to vacate the magistrate judge’s holding order
as to the active gang participation offense and the gang enhancements, and to hold further
proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2017, Camilo G. was near the driveway of his friend’s house
when he saw a car stop in the roadway. Camilo G. saw people exit the car and then
multiple gunshots were fired in his direction; one shot hit Camilo G. in the leg. After the
incident, police pursued a car that resembled the suspect vehicle, and the vehicle’s
occupants—Mendoza, Ruben Mendoza and Jaime Ramos—were apprehended and
charged in connection with Camilo G.’s shooting.
On November 30, 2017, a felony complaint was filed against Mendoza in
connection with the shooting. The court held a preliminary hearing at which evidence
was presented against Mendoza and his two codefendants—Ruben Mendoza and Jaime
Ramos—on multiple charges and enhancements. The preliminary hearing occurred over
the course of two days (June 25th and 26th of 2019). The transcript of the hearing spans
over 200 pages.1 During the hearing, the prosecution presented 11 witnesses and 24
exhibits. There was extensive testimony presented related to the circumstances of the
charged offense, subsequent searches conducted pursuant to search warrants, DNA
evidence, and gang evidence, including evidence related to the Varrio Rexland Park
criminal street gang, predicate offenses, and the three defendants’ alleged gang
affiliations and prior police contacts.2
1Because the parties agree the evidence presented at the preliminary hearing was
insufficient under the amended law to hold Mendoza to answer to the active gang participation
charge and the gang enhancements, we do not discuss the specifics of the evidence presented at
the preliminary hearing in the published portion of our opinion as they are not necessary to our
analysis or ultimate conclusions.
2The predicate offense evidence consisted of a March 28, 2015, shooting involving
Miguel Perez for which Perez was convicted of discharging a firearm or BB gun in a grossly
negligent manner (§ 246.3), a violation of section 29800, and a 2013 case involving Carlos
3.
At the conclusion of the preliminary hearing, the court found probable cause to
believe the defendants had committed the offenses and enhancements charged. It held
each defendant to answer to six different charges and multiple enhancements.
Preliminary Hearing Evidence*
At 6:39 p.m. on November 28, 2017, Deputy Sheriff Christopher Gonzalez
responded to Vern Street in Bakersfield where he found Camilo G. bleeding profusely
from a gunshot wound in his right leg. There were bullet holes in the driver’s side of the
car in front of the driveway where Camilo G. was lying, in the garage door, and the
residence. The police recovered 10 to 15 LC17 .223 shell casings from the scene.
At about 6:36 p.m. that evening, Officer Ian Jones and two other officers were in a
parking lot approximately a quarter mile away from the shooting when they heard about
15 shots fired in the neighborhood south of them. Between 20 and 30 seconds after the
shots, Officer Jones saw a black Mercedes-Benz pass by; there were three individuals
inside. The passengers were slumped down and appeared to be trying to conceal
themselves. Officer Jones pursued the car and attempted to stop it to find out if it was
involved in the shooting because it was in such close proximity. He put on his police
lights and siren to signal to the car to yield, but the car failed to stop. Officer Jones
continued to pursue the car and noted the car “made an unsafe movement passing several
vehicles” at the beginning of the pursuit; it was speeding and straddling lanes, went
through a red light, went off the road onto the dirt shoulder to pass cars, and ran through
stop signs in the Rexland Acres neighborhood.
The Mercedes-Benz eventually stopped at a dead end and three subjects got out.
Officer Jones identified Jaime Ramos as the driver, Mendoza as the front passenger, and
Gomez, Justin Valencia, and Miguel Perez in which they were each convicted of assault with
force likely to produce great bodily injury or death. (§ 245, subd. (a)(4).)
*See footnote, ante, page 1.
4.
Ruben Mendoza as the passenger on the rear passenger side of the car. All three subjects
immediately ran to a nearby canal where other officers apprehended them.
Deputy Sheriff Christopher Cooper responded to Rexland Drive that evening.
D.V., a neighborhood resident, told Cooper she saw a four-door black car go by her
house and three police cars following it. After the vehicles passed, she found a gun in her
yard that she thought was a toy. She picked it up and carried it a few feet before she
realized “it was possibly a real gun.” She put it back on the ground, went in her house,
and then called her parents who called 911. She directed Cooper to the gun, an AR-15-
style assault rifle. It was broken into three pieces, loaded, and jammed. Cooper testified
that throwing a gun from a moving vehicle could cause it to break in the manner the rifle
was broken. LC17 .223-caliber rounds were found in the gun’s magazine. Cooper
recovered a .223-caliber shell casing from the back passenger floorboard of the black
Mercedes-Benz.
Senior Deputy Christian Melero spoke with Camilo G. at the hospital after the
shooting. Camilo G. told Melero he was going to his friend Andrew’s house when he
saw a black “box-style, older sedan” he thought was a BMW drive by. Deputy Melero
showed him a photo of the suspect vehicle, the black Mercedes-Benz, and Camilo G.
identified it as the car he saw. Camilo G. saw this car drive by in the same direction two
times. The second time, Camilo G. was near Andrew’s driveway when he saw the black
car come to a “hard stop.” He saw subjects exit the car and then he heard gunshots and
felt a shot hit his leg. He approximated over five rounds were fired and reported the
subjects were shooting at him. He was unsure how many people exited the car and could
not identify any of them because it was dark; he did not hear them say anything.
Camilo G. denied being a gang member or associating with a gang and did not say he
believed the shooting was gang related. He stated he did not have a “beef” with anyone.
He also stated he did not know defendants Mendoza, Ruben Mendoza, or Jaime Ramos.
5.
Deputy Melero later authored a search warrant for the suspect vehicle—a 1991
black Mercedes-Benz that was towed from the scene following the police pursuit. The
police located several items inside the car, including Ramos’s wallet with his
identification card in the car’s center console, Ruben Mendoza’s wallet on the passenger
side pocket with his identification inside, an LC17 .223 shell casing in the rear passenger
floorboard, and a cellular phone. Melero took buccal swabs from the three defendants.
He also took a buccal swab from D.V.
The shell casing recovered from the Mercedes-Benz and the rifle found in the yard
were swabbed for DNA. The DNA profile taken from the rifle’s trigger was found to be
a mixture of at least two individuals; Jaime Ramos and D.V. were excluded as potential
contributors, the results with regard to Mendoza were “unconclusive” [sic], and Ruben
Mendoza “could not be excluded as a potential contributor,” meaning many of his alleles
were present within the DNA mixture found on the trigger.
Criminalist Jerry Garza explained the TrueAllele casework system helps
deconvolute more challenging mixtures. He testified: “When a likelihood ratio is
calculated using a TrueAllele casework system it was assumed that the evidence sample
contained two contributors. A match between this evidence item and Ruben Mendoza is
X times more likely to be than a coincidental match to a random unrelated person in the
following reference populations. [¶] In the African-American population, 2.1 quintillion.
In the Caucasian population, 3.5 quintillion. In the Hispanic population, 600 trillion.”
As to the DNA swab taken from the “bottom of the stock of the tan rifle,” it, too,
was a mixture of at least two individuals; Jaime Ramos and D.V. were excluded as
potential contributors, the results with regard to Mendoza were “inconclusive,” and
Ruben Mendoza “could not be excluded as a potential contributor.” Ruben Mendoza was
considered to be a “major contributor” to the DNA found on the trigger and the bottom of
the rifle.
6.
Regarding the DNA swab taken from the “lower [P]icatinny [rail] of the rifle,”
there was a mixture of at least two individuals. The results were inconclusive as to Jaime
Ramos, D.V., and Mendoza; Ruben Mendoza “could not be excluded as a potential
contributor.” With regard to the lower Picatinny rail of the rifle, they used the “three-
person mixture,” “[s]o [Ruben Mendoza] was one of those parts,” meaning about a one-
third contributor.
Criminalist Apryl Brown compared the shell casings recovered in this case, and
based upon her review, she opined they were all fired from the same gun.
Officer Brandon Geherty executed search warrants in connection with Camilo G.’s
shooting, which included the home of Mendoza and Ruben Mendoza. In the southeast
bedroom, he “located graffiti that read VRP X3,” which he recognized to be “commonly
associated with the Varrio Rexland Park street gang.” The prosecution introduced
photographs taken during the search. One photograph was taken of a cell phone in the
residence that displayed Ruben Mendoza wearing a Pittsburgh Pirates hat, an item
commonly associated with the Varrio Rexland Park (VRP) criminal street gang. There
was also a photograph of another Pittsburgh Pirates hat found in the residence. A family
member told Geherty she believed either Ruben Mendoza or Mendoza put the graffiti
found on the dresser in the southeast bedroom. The family member said she knew
Miguel Perez, Jose Cota, and Justin Valencia through Ruben Mendoza and Mendoza.
Geherty also executed a search warrant on Jaime Ramos’s residence. The
prosecution introduced a photograph of three hats located in Ramos’s bedroom that were
significant because they were commonly associated with the VRP criminal street gang: a
Houston Rockets hat and two Pittsburgh Pirates hats. Geherty also saw a gun magazine
and a blue bandana during the search. The blue bandana was significant because it “is
commonly associated with surenos or southern Hispanic criminal street gangs” and the
VRP gang is a southern Hispanic criminal street gang. A spent round of .223-caliber
7.
ammunition, a rifle case, live 40-caliber handgun ammunition, a handgun holster, and a
scope were also located in the residence.
Officer Geherty also testified as a gang expert. Based on his experience, he
opined there is a gang known as the Varrio Rexland Park criminal street gang in
Bakersfield. He had spoken to members of the VRP gang about crimes they commit and
are involved in, and the gang’s boundaries. He personally investigated several crimes
involving the VRP gang and had testified as an expert on the gang.
Geherty gave several opinions regarding the VRP gang membership of several
individuals. Miguel Perez is a VRP member based upon his tattoos and primary
activities. Jose Cota, who had passed away, was also a VRP member based upon his
tattoos and activities. Justin Valencia is also an active VRP gang member. Valencia self-
admitted his VRP gang membership to Geherty, and stated he uses the moniker “Frost.”
Geherty explained the traditional boundaries VRP claims. He testified Vern
Street, where the shooting occurred, has another criminal street gang “commonly known
as … Can’t Stop Banging.” And these “gang members often reside or hang out at,
specifically [where the shooting occurred.]” Geherty explained, the Can’t Stop Banging
gang members have been contacted by Kern County Sheriff’s Office or Bakersfield
Police Department on Vern Street and either live or have lived on that street in the past.
Based on his contacts with active VRP gang members, Officer Geherty testified
the VRP gang considers all other gangs to be its rivals, and Can’t Stop Banging considers
VRP to be a rival. VRP is its own neighborhood gang. But when their members are in
custody, they align themselves with Sureños or southern Hispanic street gangs. VRP
claims the color royal blue and members make the letters “R” and “P” with their hands
and fingers as their identifying sign. Geherty opined VRP has more than three members
in Bakersfield and it does not have any subsets. And it is common knowledge to active
members or associates of the gang that VRP is engaged in a continuing pattern of
criminal conduct. “Their primary activities range anywhere from burglary to sales of
8.
narcotics to assaults with deadly weapons on peace officers to assault with deadly
weapons in general, attempted homicides,” illegal possession of firearms, and shooting at
inhabited dwellings. According to Geherty, VRP was “active” on November 28, 2017.
He explained several ways to join the gang: an individual can be “born in, which
means to have family already within the gang,” “rushed in or jumped in, which is pretty
much to be assaulted for a certain period of time,” and when “that is over with you
become part of the criminal street gang,” or “to be crimed in or to put in work for the
gang, which means to go out and commit assaults against” rivals or “commit burglaries,
get money for the gang.” Someone who is up and coming in the gang may commit a
crime with other VRP gang members or on behalf of the gang; “[t]hat is one way to put in
work.” Multiple factors may be considered to determine if young gang members are
working their way into the gang, including with whom they associate, the crimes they are
committing, and their tattoos and apparel.
Geherty testified he was familiar with a June 6, 2013, case involving Carlos
Gomez, Justin Valencia, and Miguel Perez from reading the offense reports and speaking
to the deputies involved in the investigation. Gomez, Valencia, and Perez were convicted
of assault with force likely to produce great bodily injury or death (§ 245, subd. (a)(4)), a
primary activity of the VRP gang. Geherty was familiar with Gomez’s tattoos and had
listened to his jail calls in which Gomez mentioned “Lupe,” “Ruben,” and “Moco,”
which is Jaime Ramos’s moniker. Geherty opined Gomez was an active member of the
VRP street gang at the time of the 2013 offense.
Geherty also discussed a shooting that occurred on March 28, 2015, involving
Miguel Perez. Perez was convicted of discharging a firearm or BB gun in a grossly
negligent manner (§ 246.3) and a violation of section 29800 in connection with the
incident. Geherty opined the other individuals Perez was with at the time—Yovani
Leyva and Jose Contreras—were also active members of VRP.
9.
Officer Geherty contacted Mendoza on July 6, 2017, within the traditional
boundaries of the VRP gang. Geherty and another officer were on patrol and noticed
Mendoza walking in the middle of the street. Mendoza was wearing a Kansas City
Royals hat and “flying a blue bandana out of his rear pocket,” which are common signs
for the VRP gang. The officers learned Mendoza “was on probation and was attempting
to conceal something in his waistband.” Geherty located a loaded firearm in Mendoza’s
front waistband, which was significant because weapon possessions and violations are
primary activities of the VRP gang. Geherty also testified Mendoza’s residence was
located in VRP gang territory.
Officer Robert Batchar participated in a battery investigation in Bakersfield on
March 4, 2016. An individual named Jose V. reported Mendoza, Ruben Mendoza, and
two other “unknown suspects” assaulted him. Jose V. was hit over the head with a beer
bottle, fell to the ground, and was kicked several times. Jose V. reported that Mendoza
and another unknown subject pointed handguns at him while he was on the ground.
Jose V. believed they fought him because he looked at Mendoza “in a way which he
didn’t like.” At the time, Jose V. stated he was dating Mendoza and Ruben Mendoza’s
sister. He identified Mendoza and Ruben Mendoza as members of the VRP gang.
As part of his investigation, Officer Batchar spoke to Mendoza after reading him
his Miranda rights. According to Batchar, Mendoza reported he fought Jose V. because
Jose V. was seeing Mendoza’s sister and Jose V. “looked at him in a dirty way.”
Mendoza said Ruben Mendoza had nothing to do with the fight. While he was at
Mendoza and Ruben Mendoza’s address, Batchar spoke to their mother, Mrs. Mendoza.
She reported her daughter was Jose V.’s ex-girlfriend; Jose V. was not welcome at her
home; and he was constantly there looking for her daughter when he was intoxicated.
As to the incident with Jose V., Officer Geherty found it significant that Mendoza
“felt disrespected.” He noted Mendoza reported the subject was “‘mean mugging him,’”
meaning staring in a disrespectful manner. And “they combat[ted] that with a hyper
10.
violence. They do not want to seem weak. So they assault in a group fashion … by
busting a beer bottle over his head and then displaying firearms towards him.” He
explained “hyper violence … commands respect which is a very big thing in the gang
world.” Geherty noted an assault with a beer bottle or a potentially deadly weapon is a
primary activity of the VRP gang. He also found it significant that Mendoza, Ruben
Mendoza, and the two other individuals were acting together during the incident, noting
oftentimes “gang members will assault people in a group fashion to greater enhance their
odds of successfully completing the assault.”
Officer Geherty opined Mendoza and Ruben Mendoza were and are active
members of the VRP gang and they were actively participating in the gang at the time of
this offense (Nov. 28, 2017). In determining whether Jaime Ramos was a member of the
VRP gang, Geherty considered that Ramos actively participated in the crime by acting as
the driver of the suspect vehicle that led to the shooting and then he led law enforcement
on a pursuit, “which further shows that he was attempting to evade and avoid capture by
law enforcement.” He also noted there were numerous signs of gang affiliation to the
VRP gang at Ramos’s residence, including a blue bandana, several hats and clothing
commonly associated with the gang, as well as ammunition and a rifle case. Based on the
totality of those circumstances, Geherty opined Ramos is and was an active member of
the VRP gang and he was actively participating in the gang on November 28, 2017.
Officer Geherty opined the VRP gang was involved in the current shooting
incident of Camilo G. He found it significant the shooting was committed on Vern
Street, known rival gang territory, the police pursuit of the defendants ended in the “heart
of Varrio Rexland Park territory,” and that VRP gang graffiti, clothing, and apparel was
located at each of the defendant’s residences. Also significant was the use of firearms
because “weapons violations” are among the VRP gang’s primary activities.
The prosecutor posed Geherty with the following hypothetical scenario: “Three
Varrio Rexland Park criminal street gang members conspire to commit a shooting at a
11.
juvenile on Vern Street in Bakersfield, California. One of them fires over ten rounds at
the juvenile and at the occupied house where the juvenile is standing. He hits the
juvenile once in the leg. [¶] Seconds after the shooting the three gang members drive
away. They end up in a high speed pursuit with law enforcement and they throw an AR-
15 out of the moving vehicle.” Geherty opined “this hypothetical was for the benefit of
the Varrio Rexland Park criminal street gang as well as in association with the Varrio
Rexland Park criminal street gang.”
Geherty testified the facts of the hypothetical offense benefit the gang in multiple
ways. “[I]t benefits each member itself. It displays that each of these members is willing
to conduct such a heinous act for the benefit of the criminal street gang which will then
elevate their status within the gang. It will gain … respect for them within the gang and
the more respect you have in the gang the more powerful you are, the more control you
have.”
The prosecutor then added these facts to the hypothetical offense: “If there’s a
shooting on Vern Street by Varrio Rexland Park at a young Hispanic male, whether or
not that young Hispanic male is a known gang member, not a known gang member,
whatever the case may be, does that still benefit the Varrio Rexland Park criminal street
gang?” Geherty opined the shooting benefits the VRP gang “[b]y not only attempting to
instill fear within the community outside of their territory but also instilling fear within
rival gangs in that area. It also shows that the [VRP] gang has a fierce reputation and it
bolsters that reputation by conducting that shooting” “regardless of who they are shooting
at so long as it is in rival territory.”
Geherty opined the hypothetical scenario was done in association with the gang in
that there are three active VRP members conducting the crimes: one is acting as a
shooter, one is acting as a lookout, and the third is acting as the driver who led law
enforcement on a pursuit afterward. “So they are all three actively participating in this
crime in association with one another. Thus forth [sic] acting in association with the
12.
[VRP] gang.” He explained, three VRP members committing a crime together elevates
their status as individuals in the gang. Committing the crimes together allows the
members to vouch for each other; it increases their rate of success for committing a
crime; and it is a way to train younger gang members or bring them into the gang by
making them do violent crimes. Geherty also opined the crimes in the hypothetical
scenario promote and assist the VRP gang.
After the conclusion of the evidence, counsel for defendants argued the evidence
presented was insufficient to show the shooting was gang-related and argued the gang
enhancement should be dismissed. The prosecutor argued there was sufficient evidence
of association and “the indicia in this case tells us that the primary motive, if not the only
motive for the shooting in this case, is the gang rivalry because they are Rexland Park
gang members and they are in rival territory.”
Charges and Information
Mendoza, Ruben Mendoza and Jaime Ramos were charged by information with
the attempted murder of Camilo G. (Pen. Code, §§ 664, 187, subd. (a); count 1), shooting
at an inhabited dwelling (id., § 246; count 2), assault with an assault weapon (id., § 245,
subd. (a)(3); count 3), evading a police officer (Veh. Code, § 2800.2; count 4), active
participation in Rexland Park, a criminal street gang (Pen. Code, § 186.22, subd. (a);
count 5), and resisting, delaying, or obstructing a police officer (id., § 148, subd. (a)(1);
count 6). As to Mendoza, it was alleged the attempted murder (count 1) was done by a
means listed in Penal Code section 189; counts 1, 2, 3, and 4 were committed for the
benefit of, at the direction of, or in association with Rexland Park, a criminal street gang,
with the specific intent to promote, further or assist in criminal conduct by gang members
(id., § 186.22, subd. (b)(1)); and, on counts 1 and 2, Mendoza was a principal in the
offense and at least one principal intentionally and personally discharged and used a
firearm and proximately caused great bodily injury to another person other than an
accomplice (id., § 12022.53, subds. (d), (e)(1)).
13.
Section 995 Motion to Dismiss
In April 2022, Mendoza filed a section 995 motion to dismiss the substantive gang
charge (count 5) and the gang enhancements attached to counts 1, 2, 3, and 4 in light of
the passage of Assembly Bill 333. Mendoza argued the 2015 predicate offense presented
involved only one alleged gang member “and therefore cannot establish a ‘pattern of
criminal gang activity’ as required by the new legislation,” and, he asserted, the 2013
predicate offense does not fall within the new requisite timeframe because it was not
committed within three years of the current offense. He also argued there was no
evidence as to how either of the predicate offenses benefitted the gang and no evidence,
other than reputational, was presented to prove the current offense benefitted the gang as
required by the amended law. He also asserted the prosecution failed to establish Varrio
Rexland Park is an ongoing, organized association whose members engage in, or have
engaged in, a pattern of criminal gang activity. He further contended there was no
evidence the predicate offenses presented constituted collective criminal activity. He
specifically argued the active gang participation count (count 5) must be dismissed
because the prosecution failed to establish a pattern of criminal gang activity.
The People opposed the motion, arguing Assembly Bill 333 is unconstitutional
because it made substantial amendments to section 186.22 and, thereby, amended
Proposition 21; but it was not passed by a two-thirds vote of each house of the
Legislature as required.
The court denied Mendoza’s section 995 motion to dismiss. It explained:
“I’m going to be following the case law … in a different procedural
scenario where a defendant is convicted after trial pending final judgment
sentencing, the law changes on the elements required for the conviction.
The Courts have sent it back and allowed the district attorney to go back
and retry the case on the amended elements and the Court did not …
indicate they were requiring the D.A. to go all the way back to a
preliminary hearing.
“So the defendant in those cases are in the exact same procedural
posture as the defendants in this case. Although, I do appreciate that the
14.
defendants in this case and in those other cases got to the same point in a
different way. Given that they are in the same procedural posture in the
other cases where … the Court does not require the D.A. to redo a
preliminary hearing.
“Given that, I’m going to be denying the 995 motion. The case will
move forward, but the People will obviously have to … try the case on the
elements as they currently stand.”
DISCUSSION
Mendoza filed a section 999a petition for writ of mandamus seeking review of the
court’s order denying his section 995 motion to dismiss the active gang participation
charge and gang enhancements. We now remand for further proceedings.
I. Assembly Bill 333 Applies Retroactively to the Preliminary Hearing
Proceedings
Initially, the parties agree, as do we, that Assembly Bill 333’s changes to section
186.22 should apply retroactively to the evidence presented at the preliminary hearing.3
A. Applicable Law
1. Assembly Bill 333
After the preliminary hearing was held in this matter and Mendoza was held to
answer on the charges, including the gang-related allegations, the Legislature enacted
Assembly Bill 333, the STEP Forward Act of 2021, which, in part, amends section
186.22 to impose new substantive and procedural requirements for gang allegations. The
legislation went into effect on January 1, 2022.
Assembly Bill 333 amended the definition of a “‘criminal street gang,’” requiring
proof that the gang is an ongoing, organized association or group of three or more
persons, whose members collectively engage in, or have engaged in, a pattern of criminal
3In addition to the arguments submitted by Mendoza and the Attorney General, the Kern
County District Attorney’s Office previously filed an application for permission to file an amicus
curiae brief in this case. In our original order denying the petition for writ of mandamus, which
has now been vacated, we denied the application for permission to file an amicus curiae brief.
For purposes of clarity, we reiterate the order denying the district attorney’s application for
permission to file an amicus curiae brief.
15.
activity (§ 186.22, subd. (f)). The law also created a stricter requirement for “‘a pattern
of criminal gang activity’” to prove the group with which the defendant is associated is
indeed a criminal street gang. (See § 186.22, subds. (e)–(f).) Previously, the prosecution
needed to prove only that those associated with the gang had committed at least two
offenses from a list of predicate crimes on separate occasions within three years of one
another. (See § 186.22, former subd. (e).) Under the newly amended law, the offense
with which the defendant is currently charged cannot be used as one of the two predicate
offenses. (§ 186.22, subd. (e)(2).) In addition, the last of the predicate offenses must
have “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).) The
predicate offenses must have been committed “on separate occasions or by two or more
members,” and must have been for the “common[] benefit[] [of] a criminal street gang,”
and the common benefit of the offenses must be “more than reputational.” (Ibid.)
Assembly Bill 333 also narrowed the list of offenses that may be used to establish a
pattern of criminal gang activity (compare § 186.22, former subd. (e)(1)–(33) with
§ 186.22, current subd. (e)(1)(A)–(Z)). Additionally, it now defines “to benefit, promote,
further, or assist” throughout section 186.22 to mean “to provide a common benefit to
members of a gang where the common benefit is more than reputational.” (Id., subd.
(g).) The legislation notes examples of a common benefit that are more than reputational
“may include, but are not limited to, 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.” (Ibid.)
2. Retroactivity
Section 3, which instructs that no part of the Penal Code applies retroactively,
unless expressly so declared, has been interpreted to mean that new criminal laws do not
govern prosecutions initiated before the law went into effect. (See People v. Padilla
(2022) 13 Cal.5th 152, 160; In re Estrada (1965) 63 Cal.2d 740, 746–748 (Estrada).)
16.
However, the California Supreme Court has recognized an exception to this rule for new
laws that mitigate punishment. (Padilla, at p. 160; Estrada, supra, at p. 745.) The
Estrada court held that such laws are presumed to apply to cases charged before the law’s
enactment but that are not yet final. (Estrada, supra, at p. 745.) Absent evidence to the
contrary, we presume that when the Legislature “‘amends a statute so as to lessen the
punishment,’ it ‘must have intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it constitutionally could
apply.’ (Ibid.) Because the Legislature has ‘determined that its former penalty was too
severe,’ the only reason to apply that penalty in pending cases would be ‘a desire for
vengeance,’ a motivation we decline to attribute to our lawmakers.” (Ibid.; accord,
Padilla, at p. 160.)
In People v. Tran (2022) 13 Cal.5th 1169, the California Supreme Court held
Assembly Bill 333’s amendments to section 186.22 altering the requirements necessary
to prove the substantive gang offense and gang enhancements operate retroactively under
the rule of Estrada. (Tran, at p. 1206.) The Tran court explained “Estrada ‘stand[s] for
the proposition that (i) in the absence of a contrary indication of legislative intent, (ii)
legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of
the legislation’s effective date.’ [Citation.] Estrada applies to statutory amendments
‘which redefine, to the benefit of defendants, conduct subject to criminal sanctions.’
[Citation.] Here, ‘Assembly Bill 333 essentially adds new elements to the substantive
offense and enhancements in section 186.22—for example, by requiring 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
17.
enhancement,’ with obvious benefit to defendants like Tran. [Citation.]” (People v.
Tran, supra, at pp. 1206–1207.)
B. Analysis
No case has yet addressed whether new laws, such as Assembly Bill 333, that
change the elements of an offense or enhancement to a defendant’s benefit apply
retroactively to the showing necessary to hold a defendant to answer to the related charge
or enhancement. Put differently, it has not yet been decided whether the evidence
presented at a preliminary hearing that was sufficient to hold a defendant to answer under
the old law should be sufficient to hold a defendant to answer despite the change in the
law. Here, the parties agree the Estrada presumption should apply such that Assembly
Bill 333’s amendments to section 186.22 would apply retroactively to the showing
required at the preliminary hearing. We, too, agree.
As discussed, absent evidence to the contrary, we presume that when the
Legislature “‘amends a statute so as to lessen the punishment,’” it “‘must have intended
that the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply.’” (People v. Padilla, supra,
13 Cal.5th at p. 160; accord, Estrada, supra, 63 Cal.2d at p. 745.) And, the California
Supreme Court has held Assembly Bill 333 applies retroactively under Estrada. (See
People v. Tran, supra, 13 Cal.5th at pp. 1206–1207.) We find no basis upon which to
conclude Assembly Bill 333’s changes to the elements of the gang-related offenses
should not apply to the showing required at the preliminary hearing. Rather, Mendoza’s
case is not final and Assembly Bill 333’s amendments are retroactive under Estrada.
Therefore, its changes to the elements of the gang-related charges should be retroactive to
the showing necessary to sustain the gang-related charges at the preliminary hearing.
Indeed, as provided in section 872, subdivision (a), a defendant shall only be held
to answer where “it appears from the examination that a public offense has been
committed, and there is sufficient cause to believe that the defendant is guilty.” In
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situations such as this, where a change in the law amends the elements of an offense, a
defendant should only be held to answer where it appears from the preliminary
examination that a public offense has been committed under the new law, since conduct
under the old law may no longer constitute an offense. To hold otherwise would obviate
the purpose of a preliminary examination and permit a defendant to be held to answer for
an offense or enhancement for which the requisite showing has not been made.
Accordingly, we agree with the parties a defendant may seek the benefit of the
change in the law by challenging the evidence presented at the preliminary hearing to
hold the defendant to answer based on the change in the law.
II. Reopening of the Preliminary Hearing Proceedings Is Appropriate
The parties also agree the evidence at the preliminary hearing was insufficient to
hold Mendoza to answer to the active gang participation charge and gang enhancements
based upon the changes in the law, but they dispute the appropriate remedy. We
conclude the prosecutor may move to reopen the preliminary hearing proceedings to
present additional evidence on the amended elements of the gang-related charges or
proceed without them.
A. Applicable Law
1. Sections 995 and 995a
Section 995 provides, in relevant part, upon a defendant’s motion, an information
shall be set aside where “the defendant had been committed without reasonable or
probable cause.” (§ 995, subd. (a)(2)(B); see People v. Henson (2022) 13 Cal.5th 574,
582.) “‘“‘Reasonable or probable cause’ means such a state of facts as would lead a man
of ordinary caution or prudence to believe, and conscientiously entertain a strong
suspicion of guilt of the accused. ‘Reasonable and probable cause’ may exist although
there may be some room for doubt.”’” (People v. Mower (2002) 28 Cal.4th 457, 473;
accord, § 872, subd. (a) [defendant shall be held to answer where “it appears from the
[preliminary] examination that a public offense has been committed, and there is
19.
sufficient cause to believe that the defendant is guilty”].) Accordingly, “section 995
allows a defendant to challenge an information based on the sufficiency of the record
made before the magistrate at the preliminary hearing. [Citation.] In reviewing the
denial of a … section 995 motion to set aside an information, we ‘in effect disregard[] the
ruling of the superior court and directly review[] the determination of the magistrate
holding the defendant to answer.’ [Citations.]” (Lexin v. Superior Court (2010) 47
Cal.4th 1050, 1071–1072.)
Assembly Bill No. 2984 added the remand procedure of section 995a, subdivision
(b), which is at issue here. The Assembly Committee on Criminal Justice, the Senate
Committee on Judiciary, as well as the Legislature passed the bill unanimously in 1982.4
(Caple, supra, 195 Cal.App.3d at pp. 600–601.)
Section 995a, subdivision (b)(1) provides that “[w]ithout setting aside the
information” a court may, upon motion of the prosecuting attorney, “order further
4“As introduced, the bill would have added the following new subdivision (b) to section
995: ‘Without setting aside the information, the court may, in its discretion, remand the cause to
the committing magistrate for further proceedings, or itself sit as a magistrate and conduct
further proceedings, which it deems appropriate, if the court finds that the errors alleged by the
defendant could be expeditiously cured or corrected by further proceedings. Any further
proceeding held pursuant to this subdivision may include the taking of testimony and shall be
deemed to be part of the preliminary examination.’
“As enacted, subdivision (b) of section 995a shows that Assembly Bill No. 2984 had
been substantially amended. The amendments (1) moved the remand provision from section 995
to section 995a; (2) permitted remand only ‘upon motion of the prosecuting attorney’; (3) limited
the remedy to ‘minor errors of omission, ambiguity, or technical defect which can be
expeditiously cured or corrected without a rehearing of a substantial portion of the evidence’; (4)
permitted the superior court itself to ‘sit as a magistrate’ for the purpose of the further
proceedings only if the parties agree; (5) required that the superior court, upon remanding to the
original magistrate, state the perceived ‘minor errors’ in the remand order; (6) permitted recourse
to the correction procedure only once with respect to any information; (7) provided that the
correction proceedings shall not be deemed to extend the time within which a defendant must be
brought to trial under … section 1382; (8) required that the superior court reserve its final ruling
on the motion to set aside the information until the correction proceedings are completed; and (9)
anticipated writ review if ‘the [superior] court abused its discretion in utilizing the procedure set
out in subdivision (b) of section 995a.…’” (Caple v. Superior Court (1987) 195 Cal.App.3d 594,
601, fn. 6 (Caple).)
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proceedings to correct errors alleged by the defendant if the court finds that such errors
are minor errors of omission, ambiguity, or technical defect which can be expeditiously
cured or corrected without a rehearing of a substantial portion of the evidence.” That is,
“[b]efore a trial court may institute further proceedings to correct preliminary hearing
errors, section 995a requires it make two separate findings: (1) a minor error of
omission, ambiguity or technical defect which, (2) can be expeditiously cured.” (Caple,
supra, 195 Cal.App.3d at p. 601; accord, Garcia v. Superior Court (2009) 177
Cal.App.4th 803, 814 [“section 995a, subdivision (b)(1) is reasonably understood as
giving the court discretion to order further proceedings instead of setting aside an
information but only if the … statutory prerequisites are met”].) “In cases in which the
procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a
final ruling on the [section 995] motion [to set aside the information] until those
procedures have been completed.” (§ 995, subd. (b).)
2. Principles Governing Remand Based Upon Change in the Law
California courts have held, when a conviction is reversed because the evidence is
now insufficient to support it based solely upon a change in the law that occurred after
the defendant was convicted, retrial of that conviction is permitted and not barred by the
double jeopardy clause. (See, e.g., People v. Sek (2022) 74 Cal.App.5th 657, 669
[reversing gang enhancements as a result of passage of Assem. Bill 333 and permitting
retrial, reasoning “‘[b]ecause we do not reverse based on the insufficiency of the
evidence required to prove a violation of the statute as it read at the time of trial, the
double jeopardy clause of the Constitution will not bar a retrial’”]; accord, People v.
Figueroa (1993) 20 Cal.App.4th 65, 68, 72 [reversing enhancement in light of
amendment to statute adding new element to it, and remanding to give People
opportunity to prove up new element].) Such cases reason, “‘“‘Where, as here, evidence
is not introduced at trial because the law at that time would have rendered it irrelevant,
the remand to prove that element is proper and the reviewing court does not treat the
21.
issue as one of sufficiency of the evidence.’””’ (People v. Sek, supra, at pp. 669–670;
accord, People v. Monk (2018) 21 Cal.App.5th Supp. 1, 8 [same]; People v. Ramos
(2016) 244 Cal.App.4th 99, 103 [same]; People v. Figueroa, supra, at p. 72 [same].)
This conclusion follows from “‘a well-established part of our constitutional
jurisprudence’”—“‘[t]he principle that [the Double Jeopardy Clause] does not preclude
the Government’s retrying a defendant whose conviction is set aside because of an error
in the proceedings leading to conviction.’” (Burks v. United States (1978) 437 U.S. 1,
14.) This is because “reversal for trial error, as distinguished from evidentiary
insufficiency, does not constitute a decision to the effect that the government has failed to
prove its case. As such, it implies nothing with respect to the guilt or innocence of the
defendant. Rather, it is a determination that a defendant has been convicted through a
judicial process which is defective in some fundamental respect, e.g., incorrect receipt or
rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this
occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free
from error, just as society maintains a valid concern for insuring that the guilty are
punished.” (Burks, at p. 15; see also United States v. Tateo (1964) 377 U.S. 463, 466 [“It
would be a high price indeed for society to pay were every accused granted immunity
from punishment because of any defect sufficient to constitute reversible error in the
proceedings leading to conviction”].)
Applying the principles articulated in Burks, the California Supreme Court in
People v. Shirley (1982) 31 Cal.3d 18, held it was prejudicial error to admit testimony of
a complaining witness who had undergone hypnosis for the purpose of restoring her
memory of the events in issue, “but ‘reversal for trial error, as distinguished from
evidentiary insufficiency, does not constitute a decision to the effect that the government
has failed to prove its case.’ [Citation.] Rather, the matter is governed by the settled rule
that the double jeopardy clause does not prohibit retrial after a reversal premised on error
of law. [Citations.]” (People v. Shirley, supra, at p. 71.) The Shirley court explained,
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the Burks rule “forbids retrial after a reversal ordered because the evidence introduced at
trial was insufficient to support the verdict.” (Shirley, at p. 71.) And, “[t]he rule achieves
its aim—i.e., of protecting the defendant against the harassment and risks of unnecessary
repeated trials on the same charge—by the device of giving the prosecution a powerful
incentive to make the best case it can at its first opportunity. (Burks[ v. United States,
supra, 437 U.S.] at p. 11.) But the incentive serves no purpose when, as here, the
prosecution did make such a case under the law as it then stood; having done so, the
prosecution had little or no reason to produce other evidence of guilt.” (Ibid., italics
added.)
B. Analysis
In his section 999a petition for writ of mandamus, Mendoza asserts the court erred
in not dismissing the gang offense and enhancements. He argues the evidence at the
preliminary hearing did not establish that the benefit of the current offense was anything
more than reputational. He further contends the evidence failed to establish the 2013
predicate offense occurred within three years of the current offense and the 2015
predicate offense was not a valid predicate because it only involved one individual—
Miguel Perez—but “a ‘pattern of criminal gang activity’ can only be established by
showing that the predicate offense was committed by ‘two or more members.’” He also
contends there was no evidence either predicate offense benefitted the gang in a way that
was more than reputational. He further argues the preliminary hearing failed to establish
the Varrio Rexland Park gang was an ongoing and “organized” association.
Initially, he contended, “[a]fter vacating the offense and reversing the
enhancements, [t]his Court should construe a remedy, which likely would entail allowing
the [P]eople the opportunity to prove, at a preliminary hearing, the gang offense and
enhancements.” In his reply, however, Mendoza asserts “[i]t is premature for [the
People] to suggest remanding the gang enhancements and offense pursuant to section
995a, subdivision (b) as the prosecutor has not yet filed a motion to do so.” He argued
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“[t]he prosecutor may simply choose to proceed to trial without the gang enhancements
and offense, or the prosecutor may not have sufficient proof for the gang enhancements
and offense to proceed to fill in the missing evidence.” He denies the missing evidence
constitutes a “minor omission” such that a “mini preliminary hearing” was appropriate
pursuant to section 995a, subdivision (b)(1). Rather, he argues the charges must be
dismissed and the prosecution may refile them.
In their response to Mendoza’s petition and to our order to show cause, the People
concede Assembly Bill 333 applies to the showing necessary to hold Mendoza to answer
to the gang enhancements and active gang participation charge, and they agree the
evidence presented at the preliminary hearing did not meet all of the new section 186.22
requirements. Specifically, they agree the evidence was insufficient to establish the
predicate offenses commonly benefitted the gang in a way that was more than
reputational. They contend the petition should be granted in part and the matter
remanded to allow them an opportunity to prove the active participation charge and the
gang enhancement allegations based on the new statutory requirements. They contend
“[o]ne viable remedy would be to permit the prosecution to make a motion under section
995a, subdivision (b)(1).” We conclude remand is appropriate for the court to permit the
prosecution an opportunity to request to reopen the preliminary hearing proceedings and
to present evidence on the new elements of the gang allegations or to choose to proceed
without these charges.
First, we conclude the alleged deficiency in the evidence, which is based upon the
amended elements of the gang-related offenses, should be considered a “minor error of
omission” such that remand and further preliminary hearing proceedings are permitted
pursuant to section 995a, subdivision (b)(1). In so concluding, we note the cases
considering the language of section 995a, subdivision (b)(1) have emphasized
“determining whether an omission is minor must be done on a case by case basis.”
(Caple, supra, 195 Cal.App.3d at p. 602; see People v. Meza (2011) 198 Cal.App.4th
24.
468, 473; accord, Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 219, fn. omitted
[“[F]inding a bright line of demarcation to provide courts with guidelines in applying
section 995a is an impossible task. We therefore join those who came before us
attempting to apply section 995a to particular facts”].)
The seminal case Caple, supra, 195 Cal.App.3d 594 held the term “minor
omission” in section 995a, subdivision (b)(1) “refers to one that is comparatively
unimportant.” (Caple, at p. 602.) The Caple court reasoned “use of this meaning is
consonant with the perceived legislative intent that meritorious prosecutions not be
barred based upon minor omissions.” (Ibid.) Accordingly, “an evidentiary defect will
trigger the remand provisions of section 995a, subdivision (b)(1), whenever the omission
is minor when considered in relation to the balance of the evidence required in order to
hold the accused to answer.” (Ibid.)
In Caple, the defendant was charged with possessing and transporting cocaine for
sale. (Caple, supra, 195 Cal.App.3d at p. 597.) The evidence at the preliminary hearing
established the defendant was seated within a foot and a half of the cocaine (which was
found behind the driver’s seat) and a partially burned marijuana cigarette was found in
the ashtray. (Id. at. p. 598.) No other evidence was offered at the preliminary hearing to
connect the defendant to the cocaine. (Ibid.) The defendant was held to answer and
subsequently moved to have the charge set aside under section 995. (195 Cal.App.3d at
p. 598.) The superior court remanded the matter to the magistrate for further hearing to
allow the prosecution to introduce into evidence the accused’s statement concerning
ownership of the vehicle. (Id. at pp. 598–599.) In determining whether the alleged
omission in the evidence was minor, the Caple court explained, “the quantum of proof
needed to establish probable cause for the charged offenses must be kept in mind.” (Id.
at. p. 602.) The Caple court held the trial court acted properly in remanding the matter
for the People to present additional evidence, reasoning, in part, “the omitted statement
essentially required only one additional question and answer, it did not involve a
25.
rehearing of any of the preliminary hearing evidence.” (Id. at p. 603.) The court noted
“the evidence already in the record at the time of the trial court’s remand order provided
most, if not all, of the evidence needed to hold Caple to answer for the charged offenses.”
(Ibid.) In reaching its holding, the Caple court declined to interpret the term “minor” in
the statute to require an error to be “insignificant.” (Id. at p. 601.) The Caple court
reasoned such an interpretation “would totally eviscerate section 995a, subdivision (b)(1),
by permitting its use only when the omitted evidence was unnecessary in the first
instance.” (Id. at p. 602.) But, “the Legislature did not intend the section to be so
limited.” (Ibid.)
In Garcia v. Superior Court, supra, 177 Cal.App.4th 803, the appellate court held
the trial court erred in granting the People’s request to reopen the preliminary hearing
pursuant to section 995a, subdivision (b)(1), for the purpose of permitting the court,
sitting as a magistrate, to hear new evidence before ruling on the defendant’s motion to
set aside the information, which alleged a felony violation of section 148. (177
Cal.App.4th at p. 806.) The Garcia court concluded “the trial court erred in finding that
there was a minor and expeditiously curable omission” where the preliminary hearing
transcript was “devoid of any evidence establishing the core conduct, or actus reus, of
resisting arrest.” (Id. at p. 814.) The Garcia court explained the court’s ruling
erroneously allowed “the prosecutor to present revised testimony in order to fill an
evidentiary vacuum concerning the gravamen of the offense.” (Id. at p. 806.)
Here, the additional evidence that has now become relevant to establish the
necessary showing to support the active gang participation charge and gang-related
enhancements as a result of the passage of Assembly Bill 333 was “comparatively
unimportant” at the time of the original preliminary hearing proceedings. Indeed, it was
not necessary then to proving the elements of the gang offense or enhancements. And,
while the Caple court declined to interpret the term “minor” in section 995a, subdivision
(b)(1) to mean the alleged error must be “insignificant” to support further proceedings
26.
under that section, we note in this instance, the omitted evidence was “insignificant” in
that it “was unnecessary in the first instance.” (Caple, supra, 195 Cal.App.3d at p. 602;
see People v. Meza, supra, 198 Cal.App.4th at pp. 476–477 [court erred in denying
request to reopen preliminary hearing proceedings pursuant to § 995a, subd. (b)(1) for
prosecution to present evidence statute of limitations was tolled, concluding the alleged
error was minor in that it did not relate to any element of the offense with which the
defendant was charged, involve a substantive issue of guilt or innocence, and “did not go
to the heart of the case and the evidence actually offered was sufficient to establish each
element of the charged offenses” and error could be remedied by taking judicial notice of
court file in prior proceeding].)
Furthermore, here, the prosecution presented a significant amount of evidence at
the preliminary hearing that spanned multiple witnesses and two days of evidence to
support six charges and multiple enhancements alleged against the three defendants. The
additional evidence the People must produce to support the gang-related allegations is
minor “considered in relation to the balance of the evidence required in order to hold the
accused to answer.” (§ 995a, subd. (b)(1).) Considering “the quantum of proof needed to
establish probable cause for the charged offenses” (Caple, supra, 195 Cal.App.3d at p.
602), other enhancements, and allegations at the preliminary hearing, we conclude the
omitted evidence, which the prosecution now seeks to present in further proceedings, is
minor. It is true the additional evidence the People seek to present will be more extensive
than what was necessary in Caple or Meza. Nonetheless, the omitted proof can be
“expeditiously cured or corrected without a rehearing of a substantial portion of the
evidence” (§ 995a, subd. (b)(1)) when considered in relation to the bulk of other relevant
evidence already presented, given the particular facts of this case. Thus, remand in this
situation is appropriate under section 995a, subdivision (b)(1).
This case is unlike the situation in Garcia, in which the prosecutor failed to
present any evidence establishing the core conduct of the gang-related allegations during
27.
the preliminary hearing. Rather, the parties do not dispute the People met their burden of
establishing the requisite showing to support the gang-related allegations under the old
law. Thus, reopening of the preliminary hearing proceedings in this context does not
permit the prosecutor a second chance to fill “an evidentiary vacuum concerning the
gravamen of the offense.” (Garcia v. Superior Court, supra, 177 Cal.App.4th at p. 806.)
Furthermore, even assuming the language of section 995a, subdivision (b)(1) does
not support reopening the preliminary hearing proceedings under the circumstances, the
remedy we adopt is supportable as a rule of judicial procedure by application of the
principles governing postconviction reversals based upon a change in the law. (See
§ 1260 [“The court may … if proper, remand the cause to the trial court for such further
proceedings as may be just under the circumstances”]; accord, Peracchi v. Superior
Court (2003) 30 Cal.4th 1245, 1254 [noting when error is shown, § 1260 gives appellate
courts “the authority to select among several dispositions”]; see generally People v.
Gaines (2009) 46 Cal.4th 172, 180 [“‘Section 1260 evinces a “legislative concern with
unnecessary retrials where something less drastic will do”’”].) While, ‘“[h]istorically,
trial courts have been prohibited from remanding felony prosecutions to correct errors in
the commitment” (Caple, supra, 195 Cal.App.3d at p. 600; see Tharp v. Superior Court,
supra, 154 Cal.App.3d at p. 219), here, neither party contends there was error in the
original commitment of Mendoza before the law changed. And, like the double jeopardy
clause, the Legislature has limited the prosecutor’s ability to have repeated opportunities
to pursue the same charge, in part, to protect “the defendant against the harassment and
risks of unnecessary repeated [proceedings] on the same charge—by the device of giving
the prosecution a powerful incentive to make the best case it can at its first opportunity.”
(People v. Shirley, supra, 31 Cal.3d at p. 71; accord, Burks v. United States, supra, 437
U.S. at p. 11; see § 1387, subd. (a) [precluding further prosecution in most instances “for
the same offense” after dismissal “if it is a felony or … a misdemeanor charged together
with a felony” and the action has been previously dismissed, or “if it is a misdemeanor
28.
not charged together with a felony”]; People v. Traylor (2009) 46 Cal.4th 1205, 1209 [“A
primary purpose of section 1387(a) is to protect a defendant against harassment, and the
denial of speedy-trial rights, that result from the repeated dismissal and refiling of
identical charges”]; Burris v. Superior Court (2005) 34 Cal.4th 1012, 1018 [“Section
1387 implements a series of related public policies. It curtails prosecutorial harassment
by placing limits on the number of times charges may be refiled”]; see also Burnett v.
Superior Court (1974) 12 Cal.3d 865, 873 [reopening of preliminary hearing not
permitted to allow People to bolster case with additional testimony where magistrate
erroneously found sufficient evidence to answer].) But, as with the double jeopardy
clause, “the incentive serves no purpose when, as here, the prosecution did make such a
case under the law as it then stood; having done so, the prosecution had little or no reason
to produce other evidence of guilt.” (People v. Shirley, supra, at p. 71.) The issue here,
as in cases in which the law has changed postconviction, is not of insufficiency of the
evidence. And further preliminary hearing proceedings should not be prohibited in such
instances to permit the prosecution to prove new additional elements of an offense that go
into effect after a defendant has been held to answer. (See People v. Figueroa, supra, 20
Cal.App.4th at p. 71 [“To say that appellant is now free of the enhancement would be to
reward him with a windfall”].)
For all these reasons, we conclude the order holding Mendoza to answer on the
substantive gang charge and gang enhancements must be vacated and the matter
remanded. On remand, the prosecution may request to continue the preliminary hearing
as stated herein. If the prosecution does not seek a continuation of the preliminary
hearing or does not prove the gang allegations in conformity with the amended version of
section 186.22 during the continued preliminary hearing, the case should proceed with an
amended information without these charges.5
5Nothing in this opinion should be read to preclude Mendoza from being able to move to
set aside the information pursuant to section 995 after the conclusion of the additional
proceedings.
29.
DISPOSITION
Let a writ of mandate issue directing the respondent Kern Superior Court in case
No. BF170463A to vacate the portion of the magistrate judge’s order holding Mendoza to
answer on the substantive gang charge (count 5) and gang enhancement allegations on
counts 1 2, 3, and 4. On remand, the prosecution may request to continue the preliminary
hearing to prove the active gang participation offense and gang enhancements 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 substantive gang charge and gang enhancement allegations. We do not disturb the
magistrate judge’s order in any other respect.
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
DESANTOS, J.
30.