BRIAN RODAS-GRAMAJO, Petitioner, v. THE
A166375
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
Filed 6/15/23
CERTIFIED FOR PUBLICATION; (Marin County Super. Ct. No. SC214415A)
Rodas-Gramajo thereafter moved to dismiss the gang allegation pursuant to
The California Supreme Court granted Rodas-Gramajo‘s petition for review and remanded the matter to this court with directions to vacate our decision and to issue an order to show cause why he is not entitled to dismissal of the gang enhancement allegations. (Rodas-Gramajo v. Superior Court, review granted Jan. 25, 2023, S277862.) In addition, we requested supplemental briefing by both parties on, among other issues, whether
BACKGROUND1
In October 2020, the victim was entering his residence in San Rafael when three people, including Rodas-Gramajo, confronted him. One of the men, Jesus Mendez-Munoz, lowered his shirt collar to reveal an “X8” neck tattoo,
At the preliminary hearing, a police officer testified as a criminal street gang expert. He described the 18th Street gang — also known as Canal Street Gangsters or 18th Street — as a subset of the Sureño street gang operating in San Rafael. The gang has thousands of members and is associated with the number 18 in any form or symbol, such as “XV3” or “XVIII,” as well as the colors blue, black, and attire affiliated with the Raiders. The 18th Street gang engages in criminal activity, such as assault with deadly weapons, criminal threats, selling drugs, and vandalism. The officer testified that assaulting a person benefits the gang by creating a reputation for violence. According to the officer, wearing gang attire when not a member of a gang is a sign of disrespect that actual gang members find problematic. Assaults build the gang‘s credibility and respect in the community. Violence is also used to deter people from reporting crimes.
The officer opined Rodas-Gramajo is a member of the 18th Street gang. Indeed, two months after the October 2020 attack, Rodas-Gramajo registered with the police department as an 18th Street gang member, noting he had been a member since he was 13 years old.2 (
Assembly Bill 333 became effective on January 1, 2022, while Rodas-Gramajo awaited trial. Under former
As relevant here, Assembly Bill 333 amended the definition of a “criminal street gang.” Now, proof of an “ongoing, organized association or group of three or more persons, whether formal or informal,” whose members ”collectively engage in, or have engaged in, a pattern of criminal gang activity” is required. (
Based on Assembly Bill 333, Rodas-Gramajo moved to set aside the information pursuant to
The People did not dispute there was insufficient evidence to satisfy the gang enhancement elements as amended by Assembly Bill 333 and instead requested the case be remanded to the magistrate to address the deficiencies under
Based upon the prosecution‘s proffer, the trial court concluded the evidentiary omissions were minor and ordered limited remand under
DISCUSSION
Rodas-Gramajo contends the trial court abused its discretion by reopening the preliminary hearing to permit the People to address the amended gang enhancement elements — amendments that retroactively apply to him since his case is not yet final — because the defects in the evidence were not minor errors of omission under
I.
Under
As a preliminary matter — and as Rodas-Gramajo and the Attorney General concede in the supplemental briefing — a
Here, Assembly Bill 333 amended the elements of gang enhancements in
Next, Rodas-Gramajo‘s writ challenging the denial of his
II.
Nevertheless, dismissing Rodas-Gramajo‘s information based on the subsequent legislative changes is unnecessary. On this record, remand for further preliminary proceedings under
Specifically, the court may, upon the prosecution‘s motion, order a remand for further proceedings to correct “minor errors of omission, ambiguity, or technical defect” in the commitment. (
Relying on Burnett v. Superior Court (1974) 12 Cal.3d 865, Rodas-Gramajo contends the trial court lacks discretion to reopen the preliminary hearing for additional evidence. We disagree. In Burnett, the People were attempting “to bolster the record so that probable cause for commitment might be more clearly demonstrated.” (Id. at p. 871.) The court determined there was no statutory authority conferring a trial court with “discretion to remand the cause to the magistrate in lieu of making an order setting aside the information if, in the court‘s opinion, the receipt of further testimony at a reconvened preliminary hearing would avoid the necessity of refiling a complaint and initiating a new prosecution.” (Id. at p. 868.) Rather, under existing statutes, a cause could only be resubmitted to a magistrate “for the purpose of correcting a procedural irregularity or to correct an inadvertence which is clerical in nature.” (Id. at p. 872.) But Burnett was decided before the Legislature amended
Turning to the merits of Rodas-Gramajo‘s petition, authorizing a
More importantly, the omissions were minor, that is, ones that are “comparatively unimportant.” (Caple, supra, 195 Cal.App.3d at p. 602.) That Assembly Bill 333 increased the threshold for imposing a gang enhancement does not automatically render the resulting evidentiary omissions major or significant, as Rodas-Gramajo contends.5 (Caple, at p. 601.)
Under the strong suspicion standard governing a
First, the People already identified two assaults qualifying as predicate offenses.6 (
Second, the evidence necessary to establish the gang derived more than a reputational benefit from the predicate offenses is similarly minor. Regarding the 2017 assault, evidence presented at the preliminary hearing already established Rodas-Gramajo and Hernandez-Gonzalez targeted a known member of a rival gang. Since “targeting a perceived or actual gang rival” is a recognized common benefit to the gang under the Assembly Bill 333 amendments, additional testimony is unnecessary to establish the offense‘s benefit to the 18th Street gang was more than reputational. (
Third, preliminary hearing evidence already provided the lion‘s share of proof demonstrating the 18th Street gang derived more than a reputational benefit from Rodas-Gramajo‘s charged offense. Although the victim was not an 18th Street gang member, he possessed gang-affiliated paraphernalia, such as shoelaces made from a blue bandana and a lanyard key ring with the Raider‘s logo. Testimony also established that people who wear gang attire without being a gang member were seen by actual gang members as disrespectful. By asking the victim to “represent,” Rodas-Gramajo demanded the victim disclose his gang affiliation. Rodas-Gramajo also called the victim a “snitch.” Considered in its totality, there was sufficient evidence the assault was retaliatory or to target a perceived or actual gang rival. (
The missing evidence does not go to the core of the gang allegation, contrary to Rodas-Gramajo‘s assertions. The circumstances in Garcia v. Superior Court, supra, 177 Cal.App.4th 803 are not comparable. In that case, the remand involved a substantial rehearing of evidence regarding a resisting an officer charge. The preliminary hearing contained facts for some of the elements — the officer was performing his duties, and defendant knew or reasonably should have known there was an officer performing his duties. (Id. at p. 819.) But there were no facts from which a magistrate could infer the defendant willfully resisted, delayed, or obstructed a peace officer. (Ibid.) Testimony was thus necessary to establish the defendant was subject to a lawful detention, the officer attempted to detain the defendant, and the defendant ignored the attempt to lawfully detain him, all elements the court deemed the core conduct for the offense of resisting arrest. (Id. at p. 821.) Because this was the heart of the case, the omission was not minor. (Ibid.)
Here, to prove the gang enhancement, the People must establish Rodas-Gramajo committed a felony for the benefit of, at the direction of, or in
Next, the trial court‘s finding that the errors could be corrected expeditiously without substantially rehearing the testimony finds support in the record. (Tharp, supra, 154 Cal.App.3d at p. 219.) The People stated the anticipated additional testimony would take approximately one hour. (The People obviously could not control the length of Rodas-Gramajo‘s cross-examination, but that could be manipulated and extended to always defeat remand.) This amount, compared to the approximately 156 transcript pages for the preliminary hearing, is relatively minor. More importantly, as discussed above, the additional testimony would not be a relitigation of a substantial portion of the evidence. (Mendoza, supra, 91 Cal.App.5th at p. 60; cf. Loverde v. Superior Court (1984) 162 Cal.App.3d 102, 106 [remand improper if it results in “a lengthy rehearing of a substantial portion of the evidence“].) It would merely supplement the gang enhancement evidence already in the preliminary hearing record. (Caple, supra, 195 Cal.App.3d at p. 602.) We disagree with Rodas-Gramajo‘s assertion that obtaining this additional evidence would take as long or longer than the preliminary hearing. Thus, the requirements for granting a
The People urge us to hold that a
We also reject Rodas-Gramajo‘s contention that the trial court failed to produce a remand order to guide the magistrate on remand as required by
Finally, there is no merit to Rodas-Gramajo‘s argument that a
The petition for the writ is denied. The previously issued stay is dissolved at the issuance of the remittitur.
I CONCUR:
Rodríguez, J.
Petrou, J.
A166375
TUCHER, P. J., Concurring in the result:
The Legislature tightened the requirements for proving a gang enhancement after petitioner Brian Rodas-Gramajo‘s preliminary hearing, but before his trial on charges that included the gang enhancement. (See
In brief, I conclude that In re Estrada (1965) 63 Cal.2d 740 (Estrada) entitles petitioner to have the gang enhancement struck unless, on remand to the magistrate, the People establish probable cause for the newly added elements. The trial court‘s limited remand to the magistrate was proper here for the same reason our Supreme Court has affirmed conditional reversals and limited remands with other defendants granted relief under Estrada. (See, e.g., People v. Frahs (2020) 9 Cal.5th 618, 637–640 (Frahs) [remand to determine eligibility for new mental health diversion]; People v. Stamps (2020) 9 Cal.5th 685, 700 (Stamps) [remand to enable trial court to exercise new discretionary authority to strike serious felony enhancement].) Although petitioner‘s new hearing will bear some resemblance to a hearing under
“When new legislation reduces the punishment for an offense, we presume that the legislation applies to all cases not yet final as of the legislation‘s effective date.” (People v. Esquivel (2021) 11 Cal.5th 671, 673, citing Estrada, supra, 63 Cal.2d 740.) As Estrada explains, “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper . . . .” (Id. at p. 745.)
Estrada applies to Assembly Bill 333, rendering it retroactive to all cases not yet final as of January 1, 2022. (People v. Tran (2022) 13 Cal.5th 1169, 1206–1207; see also People v. Lopez (2021) 73 Cal.App.5th 327, 343; People v. Ramos (2022) 77 Cal.App.5th 1116, 1126–1127.) Where the evidence presented at trial is insufficient to sustain a gang enhancement under the current version of
“The Estrada rule only answers the question of whether an amended statute should be applied retroactively. It does not answer the question of how that statute should be applied.” (Stamps, supra, 9 Cal.5th at p. 700.) Supreme Court precedents supply some guidance in answering the “how” question. In Stamps, our Supreme Court applied Estrada to a statute that gave sentencing courts new discretionary authority to strike serious felony enhancements. (Stamps, at pp. 692, 699 [addressing
The common denominator in these cases is that defendants must be given the opportunity to avail themselves of ameliorative changes in the law in a manner that affords them complete relief, but also in a manner that respects as much as possible the procedural paths their cases took before the ameliorative statutes took effect. (See, e.g., Stamps, supra, 9 Cal.5th at p. 701.) Petitioner contends the appropriate procedural response in this case is to dismiss the information pursuant to
A.
My reasons for doubting the applicability of
The language of
Here, petitioner does not allege that he “had been committed without . . . probable cause.” Rather, he alleges there is no currently valid holding order because Assembly Bill 333 amended the definition of the
B.
Established precedent supports only the first half of petitioner‘s argument, that the evidentiary basis for a 995 motion is fixed at the preliminary hearing. Courts have long maintained that “ ‘[t]he purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the . . . information on the basis of the record made before . . . the magistrate at the preliminary hearing.’ ” (Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269 (Stanton).) In deciding such a motion, the court should confine its review “solely” to the preliminary hearing transcript (id. at p. 270), including as augmented pursuant to
The exception is a very recent decision that also addresses the retroactive effect of Assembly Bill 333 on a defendant who has had a preliminary hearing but not a trial. (Mendoza v. Superior Court (2023) 91 Cal.App.5th 42 (Mendoza).) The Mendoza court concludes, as do I, that the sufficiency of the preliminary hearing evidence should be assessed under current
Other than Mendoza, In re Kowalski (1971) 21 Cal.App.3d 67 is the case that comes closest to supporting petitioner‘s theory. Kowalski
Menifee and the dicta in Kowalski do not support petitioner‘s argument that a new statute should be applied retroactively in deciding a
Perhaps the most compelling reason to avoid
First,
Nor do I see any reason the procedures available for providing Estrada relief should vary from one case to another, depending on the amount of additional evidence necessary to meet new elements of an enhancement. And here, I would not stretch the definition of a “minor” omission until it reaches the quantum of testimony required. Petitioner‘s original preliminary hearing lasted two half-days, and the trial court hearing petitioner‘s motion assessed the presentation of evidence responsive to Assembly Bill 333 as requiring “half a day or less, including cross-examination.” This is potentially half as much testimony as the entire original preliminary hearing and not, in my view, comparatively minor.
Third,
Based on these considerations, I would not rely on
III.
In a variety of contexts, California courts have recognized an alternative to
I would hold that a nonstatutory motion to dismiss is also the appropriate mechanism for providing relief under Estrada after a preliminary hearing but before trial. Unlike a simple 995 motion, a nonstatutory motion to dismiss is not confined solely to the record at the preliminary examination. (Gutierrez, supra, 214 Cal.App.4th at pp. 348–349.) Additional evidence made newly relevant by adoption of an ameliorative reform like Assembly Bill 333 may be introduced. A nonstatutory motion to dismiss does not require that the court first find the newly proffered evidence to be minor, or that supplementation pursuant to
Trial courts “possess a constitutionally conferred, inherent authority to ‘create new forms of procedure’ in the gaps left unaddressed by statutes and the rules of court.” (People v. Lujan (2012) 211 Cal.App.4th 1499, 1507.) Here, no great innovation is required, as the nonstatutory motion to dismiss is a tool sitting ready at hand. The Attorney General takes the position that both a 995 motion and a nonstatutory motion to dismiss are appropriate vehicles for providing Estrada relief. But as part of accepting a 995 motion, the Attorney General construes
I recognize that Currie v. Superior Court (1991) 230 Cal.App.3d 83 disavowed any judicial authority to order “a testimonial remand to the magistrate, except as authorized by statute” (id. at p. 92), but Currie does not stand in the way of taking testimony in response to a motion seeking relief under Estrada. Like Stanton and Gutierrez, Currie involved a nonstatutory motion to dismiss that was brought on grounds the prosecution had failed to disclose exculpatory evidence before preliminary hearing. (Currie, at p. 88.) The superior court purported to grant the motion, concluding the defendant‘s right to cross-examine an important witness had been impaired. But instead of then dismissing the information, the trial court remanded the matter to the magistrate to fill the evidentiary gap, allowing additional preliminary hearing testimony. (Ibid.) This was error, the Currie court held, because no appellate decision had ever authorized the reopening of a preliminary hearing except pursuant to statute. (Id. at p. 92.) Of course, cases are not authority for propositions they do not consider (In re Bailey (2022) 76 Cal.App.5th 837, 853), and Currie did not address the appropriate procedure for addressing a pretrial, post-preliminary hearing, ameliorative amendment to a governing statute. The remedy I propose does not, as did the superior court in Currie, authorize the reopening of a preliminary hearing to make up for a prosecutor‘s earlier mistake.
Instead, I would authorize a trial court or magistrate, as appropriate, to hold a hearing analogous to a hearing pursuant to
TUCHER, P. J.
Trial Court: The Superior Court of California, County of Marin
Trial Judge: Hon. Geoffrey M. Howard
Counsel: Matthew A. Siroka for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin, Charlotte Woodfork, Eric D. Share and Karen Z. Bovarnick, Deputy Attorneys General, for Real Party in Interest.