91 Cal.App.5th 42
Cal. Ct. App.2023Background
- Nov. 28, 2017 shooting in Bakersfield: victim Camilo G. was shot; a black Mercedes with three occupants (Mendoza, Ruben Mendoza, Jaime Ramos) was pursued and stopped; an AR-15-style rifle and shell casings were recovered and DNA evidence linked Ruben Mendoza to the rifle.
- At a two-day preliminary hearing in June 2019 the prosecution presented extensive evidence (witnesses, exhibits, gang expert testimony) tying defendants to Varrio Rexland Park (VRP) and introducing two predicate incidents (2013 and 2015). The magistrate held defendants to answer on multiple counts including an active gang participation count (§ 186.22(a)) and gang enhancements (§ 186.22(b)(1)).
- After the preliminary hearing, the Legislature enacted Assembly Bill 333 (effective Jan. 1, 2022), which narrowed and added elements to § 186.22 (e.g., gang must be an ongoing organized association whose members collectively engage in a pattern of criminal activity; predicates must be by two or more members, within three-year windows, and provide more than a reputational benefit).
- Mendoza moved under Penal Code § 995 to dismiss the substantive gang count and gang enhancements as insufficient under the amended law; the trial court denied the motion and the petition for writ was pursued. The People conceded AB 333 applies retroactively to this case.
- The Court of Appeal held AB 333 applies to the preliminary hearing standard, vacated the magistrate’s hold-to-answer on the gang count and enhancements, and remanded so the prosecutor may either (1) move to reopen the preliminary hearing under § 995a(b)(1) to present additional evidence satisfying the amended elements, or (2) proceed to trial on an amended information without the gang allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AB 333 applies retroactively to preliminary hearing proceedings | AB 333 should apply retroactively; its amendments benefit defendants | Trial court had applied pre-AB333 standards; People initially argued otherwise | Court held AB 333 applies retroactively to the showing required at a preliminary hearing under Estrada/Padilla/Tran |
| Whether the preliminary hearing evidence suffices under the amended § 186.22 | Mendoza: evidence fails new elements (predicates, timeframe, collective commission, more-than-reputational benefit, organized/ongoing association) | People: prior evidence met old law; may be able to cure defects | Court agreed evidence was insufficient under amended law for the gang count/enhancements |
| Appropriate remedy for insufficiency created by change in law | Mendoza: dismissal of gang count and enhancements required (but People may refile) | People: remand should be allowed so prosecutor can reopen preliminary hearing and present additional evidence | Court ordered vacatur of hold-to-answer as to gang allegations and remand permitting prosecution to seek reopening or proceed without gang allegations |
| Whether reopening under § 995a(b)(1) is permissible (minor omission standard) | Mendoza: missing elements are not minor; § 995a(b)(1) relief improper | People: omissions are minor relative to the full record; reopening is appropriate | Court concluded the omission is a "minor error of omission" in context and remand under § 995a(b)(1) (or equivalent remand) is appropriate |
Key Cases Cited
- People v. Tran, 13 Cal.5th 1169 (2022) (AB 333’s amendments to §186.22 operate retroactively under Estrada)
- People v. Padilla, 13 Cal.5th 152 (2022) (discussing retroactivity and Estrada rule)
- In re Estrada, 63 Cal.2d 740 (1965) (legislative ameliorations presumptively apply to nonfinal cases)
- Burks v. United States, 437 U.S. 1 (1978) (double jeopardy does not bar retrial after reversal for trial error)
- People v. Shirley, 31 Cal.3d 18 (1982) (distinguishing reversal for trial error from insufficiency and permitting retrial)
- Caple v. Superior Court, 195 Cal.App.3d 594 (1987) (§995a(b)(1) "minor omission" standard and remand procedure)
- Garcia v. Superior Court, 177 Cal.App.4th 803 (2009) (remand improper where preliminary record lacked core proof; omission not minor)
- People v. Sek, 74 Cal.App.5th 657 (2022) (permitting retrial/remand after statutory change eliminated enhancement)
- People v. Figueroa, 20 Cal.App.4th 65 (1993) (remand to prove new statutory element after amendment)
- Lexin v. Superior Court, 47 Cal.4th 1050 (2010) (standard of review for §995 motions and preliminary hearing sufficiency)