GUADALUPE MENDOZA, Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
F084354
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 5/3/23
PEÑA, J.
CERTIFIED FOR PARTIAL PUBLICATION*
(Super. Ct. No. BF170463A)
ORIGINAL PROCEEDINGS; Application for writ of mandate or prohibition.
Chad A. Louie, Judge.
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-
OPINION
*Pursuant to
INTRODUCTION
Guadalupe Mendoza sought an alternative writ of mandate/prohibition after the superior court denied his
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
We agree with the parties that Assembly Bill 333 applies retroactively to the preliminary hearing proceedings. We reject Mendoza‘s contention dismissal of all gangrelated 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
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 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.
*See footnote, ante, page 1.
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.
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 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 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 (
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 (
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 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 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 [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. (
Section 995 Motion to Dismiss
In April 2022, Mendoza filed a
The People opposed the motion, arguing Assembly Bill 333 is unconstitutional because it made substantial amendments to
The court denied Mendoza‘s
“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 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
Initially, the parties agree, as do we, that Assembly Bill 333‘s changes to
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
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
activity (
Assembly Bill 333 also narrowed the list of offenses that may be used to establish a pattern of criminal gang
2. Retroactivity
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
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
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
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.
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
sufficient cause to believe that the defendant is guilty“].) Accordingly, ”
Assembly Bill No. 2984 added the remand procedure of
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,
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
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,
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
B. Analysis
In his
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
“[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
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
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
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
The seminal case Caple, supra, 195 Cal.App.3d 594 held the term “minor omission” in
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
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
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
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
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
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.” (
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
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
not charged together with a felony“]; People v. Traylor (2009) 46 Cal.4th 1205, 1209 [“A primary purpose of
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
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
PEÑA, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
DESANTOS, J.
Notes
“As enacted,