Morrissette v. Superior Court CA5 ( 2023 )

Filed 5/16/23 Morrissette v. Superior Court CA5
Opinion on transfer from Supreme Court.
See concurring & dissenting opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MATTHEW MORRISSETTE,
F084131
Petitioner,
v. (Super. Ct. No. BF174718A)
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, Eric L. Christoffersen,
Christopher J. Rench and Darren K. Indermill, Deputy Attorneys General, for Real Party
in Interest.
-ooOoo-
SEE CONCURRING AND DISSENTING OPINION
INTRODUCTION
Petitioner Matthew Morrisette sought an alternative writ of mandate/prohibition
after the superior court denied his Penal Code section 995 motion to set aside an
information that charged him, in part, with the substantive gang offense (§ 186.22, subd.
(a)), gang-related enhancements (§ 186.22, subd. (b)(1)), and a gang special-circumstance
allegation (§ 190.2, subd. (a)(22)). (Undesignated statutory references are to the Penal
Code.) In the motion, Morrisette argued the gang-related allegations should be dismissed
in light of the changes effectuated by Assembly Bill No. 333 (2021–2022 Reg. Sess.)
(Assembly Bill 333), which became effective on January 1, 2022. He asserted the gang
offense, enhancements, and special circumstance allegation 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 them. The court denied the section 995 motion and,
initially, we denied the petition from the court’s order. Morrissette then petitioned for
review in the California Supreme Court and the matter was transferred back to us.
In its transfer order, the California Supreme Court directed us to vacate our order
denying mandate and to issue an order directing the respondent superior court to show
cause why the relief sought in the petition should not be granted. Accordingly, our court
issued an order to show cause and the real party in interest (the People) filed a response
conceding Assembly Bill 333 should apply retroactively to the gang enhancements and
substantive charge alleged in this case. They argued the matter should be remanded and
further preliminary hearing proceedings should be held on the substantive gang offense
and gang-related enhancements, but the gang special circumstance should remain
unaffected because any changes thereto would be an unconstitutional amendment to
Proposition 21. In his reply, Morrissette contends Assembly Bill 333 requires us to
dismiss the gang enhancements, substantive gang charge, and gang special circumstance.
However, he asserts the People may refile the information below.
2.
We agree with the parties that Assembly Bill 333 applies retroactively to the
preliminary hearing proceedings. On the contested issues, we reject the People’s
contention Assembly Bill 333 does not apply to the gang special circumstance and
Morrissette’s contention outright dismissal of the gang-related charges is required. For
the reasons we set forth in this opinion, we will issue a writ of mandate directing the
respondent court to (1) vacate the holding order as to the gang charge in count 7, the gang
enhancements attached to counts 1, 2, 3, and 6, and the gang special-circumstance
allegation, and (2) grant the People’s request to reopen the preliminary hearing
proceedings to present evidence on the gang-related elements added by Assembly Bill
333.
FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 2018, a felony complaint was filed against Morrissette and he
was subsequently arrested. A preliminary hearing on multiple charges alleged against
Morrissette and his codefendants—Anthony Bonczek, Arthur Hernandez, and Seth Don
Marin—was held over the course of two days, on June 9–10, 2021. At the hearing, the
prosecution presented 47 exhibits and seven witnesses.
Preliminary Hearing Evidence
Nichalous Evans was one of the deputies who responded to an apartment complex
in a community in Kern County at approximately 5:30 p.m. on December 12, 2017.
Evans found an unresponsive Black male in his late teens, later identified as Kawanza
Hilt, lying on the ground with multiple gunshot wounds. There was a lot of blood and
Hilt was “in some major distress.” According to Deputy Evans, Hilt “was about to die.”
Sergeant Aaron Warmerdam initially responded to the apartment complex and
then he followed the blood trail “over a fence into the neighboring mobile home park.”
The blood trail ended in the center of a roadway in the mobilehome park. Warmerdam
located a spent green shotgun shell casing and several 6.35 millimeter shell casings head
stamped GFL.
3.
Senior Deputy Sheriff Darin Grantham investigated the shooting and spoke to
A.G. who called 911 and reported there was a shooting outside of her residence in the
trailer park. Grantham directed surveillance from that area of the trailer park be seized
and A.G. confirmed the surveillance footage accurately depicted the area outside her
residence. The prosecution introduced the surveillance footage. In discussing the
footage, Grantham confirmed two people can be seen getting out of the passenger side of
a vehicle. He testified a green bandana was found on the scene that appeared to have
been dropped by one of the passengers. Grantham testified four distinct gunshots,
meaning the muzzle flash from a gun, can be seen in the video.
Detective William Malloy also reviewed the surveillance footage and found a car,
an Audi, that appeared to match the “suspect vehicle.” Sergeant Sean Mountjoy located
the Audi approximately a mile away from the crime scene. He went to the residence
where the car was located and encountered defendant Arthur Hernandez. He searched
Hernandez’s residence and found a bill statement from Audi Financial in Hernandez’s
bedroom. He also located two Los Angeles Dodgers baseball hats, some cell phones, and
a green bandana on a table. There was a painting on the wall of an ocean wave that had
“Surs up 818” written on it. Sergeant Mountjoy testified Hernandez had a tattoo of two
praying hands holding a semiautomatic firearm—there was a Warner Brothers symbol on
one hand and in script writing it says “Family Over Everything.”
Deputy Sanya Maokosy was involved in the search of the black Audi. He found
“an Uncle Mike’s handgun holster” in a door compartment. He testified he has seen
graffiti of the letters DYP “several times,” “at least two times” in the small Kern County
community. He had also seen graffiti with the word “Psyclones,” and testified the color
green is associated with that group.
Sergeant Mountjoy testified to text messages found on the phone discovered in
Hernandez’s residence. One text message from a contact listed as “Badass” said “Y-o-o-
o” and included a still picture taken from a surveillance video of the homicide. Sergeant
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Mountjoy testified defendant Bonczek was referred to as “Badass.” Another contact
listed as “Lils” sent a video of the homicide from a different camera angle and a voice
can be heard saying, “‘You can’t get no license plates or nothing, that’s good.’” The day
after the homicide, Hernandez received a text message from defendant Bonczek that said,
“‘Keep an eye out fool, stay safe.’” Bonczek also sent a picture of his new face tattoo
depicting “DYPX3” above his eye.
Sergeant Mountjoy interviewed defendant Bonczek after Hilt’s homicide.
Bonczek admitted being present for the homicide and identified the other people in the
car with him. Bonczek reported Arthur Hernandez was driving, Matthew Morrisette was
in the front passenger seat, Seth Marin was in the backseat behind the driver and Bonczek
was in the backseat behind the front passenger seat. Bonczek explained “they had all
been hanging out, drinking at the trailer park, they all got into the car and began driving
around looking for a rival gang.” They pulled up next to Hilt with their windows down.
Morrisette “challenged” Hilt and “asked him if he banged, as in gangbanged.” Hilt
replied “something something Crip.” Morrissette told Hilt “it was his hood” and “Hilt
disrespected Morrisette by walking away.” Morrisette then stepped out of the vehicle
with the shotgun and shot at Hilt. Marin also opened the door, leaned out, and shot
towards Hilt using a .25-caliber semiautomatic pistol (equivalent to 6.35 mm.). With
regard to how many shots he fired, Marin told Bonczek he “emptied a magazine” and he
was sure he hit Hilt. According to Mountjoy, “[t]he only projectiles found inside Mr. Hilt
were from double-aught buck[shot] from a shotgun.” In a letter addressed to Hilt’s
mother, Bonczek apologized for what had happened. Bonczek told Mountjoy he got out
of the car when the shooting started, explaining, “when your partner jumps you are
supposed to jump too.” Bonczek told Sergeant Mountjoy he got a tattoo above his left
eye the night of the homicide; Morrisette tattooed it on him.
Sergeant Mountjoy testified he was familiar with the initials “DYP” from
numerous contacts and talks with members of DYP, several investigations, arrests, and
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prior cases. He explained DYP stands for Deadly Young Psyclones and members
associate with the color green and display loyalty to the color blue. Members of DYP
associate with the Southern Hispanic gang and identify as “Southsiders.” Mountjoy
explained, the subset for the DYP clique in Rosamond is referred to as “the Wild Bunch”
and they use the Warner Brothers symbol. Mountjoy explained he knew of 30 to 40
members of DYP.
Bonczek told Mountjoy about his involvement with DYP; “[e]ssentially, he was
the number one for a clique that he had started in Covina called Tiny Mob,” meaning he
was the “shot caller.” Bonczek reported “Morrisette was a member of DYP.” Sergeant
Mountjoy identified Morrisette in various pictures and videos. He explained Morrisette
has a tattoo on his head that says Psyclones and a DYP tattoo. Mountjoy believed
Morrisette was affiliated with the Wild Bunch based on Morrisette’s self-admissions to
Mountjoy on numerous occasions. Additionally, Morrisette’s “tattoos show[ed] his
allegiance to the Wild Bunch and DYP as a whole.” Bonczek also stated Marin was a
member of DYP. Bonczek told Mountjoy that Hernandez was “from the hood, meaning
DYP, as an active member of DYP.”
Deputy Jeffrey Fisher testified as a gang expert. He explained he studied the
Deadly Young Psyclones criminal street gang by reviewing several cases and information
provided to him through search warrants, text messages, and Facebook accounts. He
confirmed the defendants made hand signs consistent with DYP in the videos presented.
He also confirmed Morrisette has a DYP tattoo over his right eye. He opined Morrissette
is an active member of the DYP Southern Hispanic criminal street gang based on his
actions during the homicide as displayed on the surveillance video, his tattoos, and his
use of hand signs. Fisher discussed Morrissette’s tattoo of a cupcake with a bullet hole
through it, explaining it is a form of disrespect to a rival gang referred to as “cupcakes.”
He also considered a tattoo over the entirety of Morrisette’s back that says “Wild Bunch,”
a “Warner Brothers” tattoo on Morrissette’s right hand, Bonczek’s statements, and
6.
Morrissette’s actions in the surveillance footage from the homicide in which “it appeared
that he was the first one to make contact with the victim and first one to exit out of the
vehicle and fire.” Fisher explained he recalled there was some disrespect in the
interaction with Hilt and “[d]isrespect is viewed with swift punishment or retaliation.” “If
one rival gang let’s another disrespect them and it goes undealt with, it lowers their status
in that environment…. It shows weakness.”
Fisher also testified items found in Hernandez’s room, including a legal pad with
DYPX3 written in it and hats with the letter “D” on them were consistent with
membership in the DYP criminal street gang. He opined Hernandez was an active
member of DYP at the time of the homicide. He also opined Bonczek was an active
member of the DYP Southern Hispanic criminal street gang at the time of the homicide
based on his actions during the homicide as displayed on the surveillance video, his
tattoos, and use of hand signs. He opined Marin was also an active member of DYP
Fisher testified the presence of a green bandana at the scene of the homicide suggests that
DYP was involved. He stated the primary activities of DYP include unlawful possession
of firearms, vandalism, narcotics sales, robberies, illegal weapon sales, and assaults.
After being posed with a hypothetical situation mirroring the facts of the case,
Mountjoy testified he believed the crime was done for the benefit of, at the direction of,
and in association with DYP. He explained, the shooting was “simply for the benefit of
the gang and to maintain their notoriety, because if they are challenged or disrespected in
such a way they have to respond accordingly. And they … responded by shooting the
subject.” Fisher explained, after the perceived disrespect, the gang is required to act “[t]o
not show weakness that transfers from that instant out that they will not tolerate to be
disrespected in their territory or their hood.” He testified the green bandana that was left
along with the green shotgun shell represent “the color green that is displayed by DYP.”
Fisher opined the shooting was committed in association with DYP based, in part,
on the fact more than one member was involved. “We had four DYP gang members in
7.
the car who challenged somebody in the neighborhood which is technically their claimed
hood. And when that person disrespected their hood, specifically [the person in the front
seat], that’s when they exited the car and shot him.”
He also opined the shooting was done at the direction of DYP. He believed the
first person to exit the vehicle with the shotgun was directing the shooting, noting once
the passenger got out, two other people followed suit, and the driver waited, showing his
participation by not leaving at that point.
Fisher also testified regarding two predicate offenses. The first was a July 21,
2017, case against Adrian Aristigi in which he pleaded no contest to first degree burglary
(§ 460, subd. (a)) and admitted a gang enhancement (§ 186.22, subd. (b)(1)) that referred
to the Deadly Young Psyclones as the criminal street gang. The complaint and certified
docket related to the offense were introduced. Mountjoy opined Adrian Aristigi was a
member of DYP based upon prior investigations, personal conversations with him, and
prior convictions. The second predicate offense was a 20111 case involving Eurie Brim
and Scott King in which Brim was convicted of assault with a firearm (§ 245, subd.
(a)(2)) and second degree robbery (§ 212.5, subd. (c)), and the jury found true various
enhancements, including gang enhancements (§ 186.22, subd. (b)(1)) as to each charge.
Mountjoy opined, based on prior investigations, search warrants of his residence, and
prior convictions, Eurie Brim was an active member of the Deadly Young Psyclones
between 2011 and 2013, when he became a dropout.
After the conclusion of evidence, the court found “the evidence is sufficient to
meet that low burden of proof as to both the charged offense as well as the enhancements,
including the elements of a pattern of criminal gang activity.” Accordingly, the court
found probable cause to believe Morrisette and his codefendants had committed the
offenses and enhancements charged and held them to answer to those charges.
1The charging document and testimony erroneously state the robbery occurred in 2001,
however, the parties do not appear to dispute it occurred in 2011 as evidenced by the docket
sheet.
8.
Charges and Information
Morrisette and his codefendants were charged by information on June 18, 2021,
with the first degree murder of Hilt (§ 187, subd. (a); count 1). As to Morrisette, it was
alleged the murder was intentional and committed while he was an active participant in a
criminal street gang and it was carried out to further the activities of the gang within the
meaning of section 190.2, subdivision (a)(22); he was a principal in the offense and a
principal intentionally and personally discharged and used a firearm that proximately
caused great bodily injury or death to a person other than an accomplice within the
meaning of section 12022.53, subdivisions (d) and (e)(2); the murder was committed by
one of the means described in section 189; and the offense was committed for the benefit
of, at the direction of, or in association with the Deadly Young Psyclones with the
specific intent to promote, further or assist in criminal conduct by gang members
(§ 186.22, subd. (b)). Morrisette and his codefendants were also charged with assault
with a firearm on Hilt (§ 245, subd. (a)(2); count 2) with a gang enhancement (§ 186.22,
subd. (b)) and assault with a semiautomatic firearm (§ 245, subd. (b); count 3) with a
gang enhancement (§ 186.22, subd. (b)). As to Morrisette, it was alleged he personally
used a firearm (§ 12022.5, subd. (a)) and he personally inflicted great bodily injury on
Hilt (§ 12022.7) during the commission of count 2. Morrisette was charged in count 6
with unlawful possession of a firearm in violation of section 29800, subdivision (a)(1),
with a gang enhancement (§ 186.22, subd. (b)).2 And all the defendants were charged
with active gang participation in count 7 (§ 186.22, subd. (a)) and, as to Morrisette, it was
alleged he personally used a firearm (§ 12022.5, subd. (a)) and he personally inflicted
great bodily injury on Hilt (§ 12022.7) during the commission of count 7. The
information also included prior conviction allegations as to Morrisette.
2Hernandez was charged in count 4 with willfully, knowingly, and unlawfully permitting
another person to discharge a firearm from the vehicle he owned or drove in violation of section
26100, subdivision (b) with related enhancements, and Marin was charged in count 5 with
willfully, unlawfully, and maliciously discharging a firearm from a motor vehicle at Hilt in
violation of section 26100, subdivision (c).
9.
Section 995 Motions to Dismiss
In March 2022, Morrisette filed a section 995 motion to dismiss the substantive
gang charge (count 7), the gang enhancements, and the gang special circumstance under
Assembly Bill 333. Morrisette argued the 2011 predicate offense did not fall within the
time frame for the predicate offenses established by Assembly Bill 333, and the 2017
predicate offense “involves only one alleged gang member, and therefore cannot establish
a ‘pattern of criminal gang activity’ as required by the new legislation.” He also argued
there was no evidence as to how either of the predicate offenses benefitted the gang and
no evidence, other than reputation, was presented to prove the current offense benefitted
the gang. He also asserted the prosecution failed to establish DYP is an ongoing,
organized association whose members engage in, or have engaged in, a pattern of
criminal gang activity. And he argued there was no evidence the predicate offenses
presented constituted collective criminal activity.
The People opposed the motion, arguing Assembly Bill 333 did not apply
retroactively to the preliminary hearing. They also argued the evidence presented at the
preliminary hearing showed the current offense involved the targeting of a perceived
gang rival and/or retaliation and it was committed in association with DYP. They further
contended there was sufficient evidence of DYP’s organization. Finally, they asserted
they should be permitted to reopen the preliminary hearing proceedings and introduce
additional evidence related to the predicate offenses pursuant to section 995a, subdivision
(b).
At the hearing on the motion, the prosecutor argued that retroactivity “goes back
to the trial because that’s going to be the ultimate decider of the facts. It doesn’t go all
the way back to the preliminary hearing, and it doesn’t go all the way back to the filing or
else we can have a 995 on any of those cases or even a demur[rer].” He argued it “would
take an enormous amount of judicial resources” if Assembly Bill 333 was retroactive to
the preliminary hearing such that it required it to be reopened.
10.
Morrissette’s counsel argued “the defendants were held to answer on predicates
and evidence that was presented by the prosecution at the preliminary hearing, which is
no longer valid law.” She argued “the gang enhancements should be dismissed because
they want to comport with the law as it now currently stands.”
The court denied the motions to set aside the information. It explained:
“There are Appellate Court decisions that deal with a situation where a
defendant is convicted at trial, but pending final judgment, the law changes.
And what the Court of Appeal has said is they allow the People to go back
and reopen the case and try those charges based on the new law, the
changes in the new law. The defendant under that circumstance would be
in the exact same posture as the defendants are in this case. Meaning,
they’re pending trial on—on charges or enhancements where the law has
changed. Although I do recognize that the defendants in this case
compared to the defendants in the other case where they went through trial,
and then the Court of Appeal sent it back because the law had changed
pending final judgment. They got to the same place in a different way, but
nevertheless they are in the same place. Given that there is that legal
authority, I’m going to be denying the 995 and the case will proceed to
trial. The People are obligated to provide discovery. [Prosecutor], as you
know under the Penal Code Section there is a certain timeline where you
need to provide that discovery, and the People will have to prove beyond a
reasonable doubt all the charges and allegations per the new law.”
DISCUSSION
Morrisette filed a petition for writ of mandamus or prohibition seeking review of
the court’s order denying his section 995 motion to dismiss the gang-related charge,
enhancements, and special circumstance allegation. 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.
In addition to the briefing submitted by the parties, 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 writ of mandate or prohibition, which has now
11.
been vacated, we denied the application for permission to file an amicus curiae brief. For
purposes of clarity, we reiterate the order denying the application for permission to file an
amicus curiae brief.
A. Applicable Law
1. Assembly Bill 333
After the preliminary hearing when Morrisette 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
activity (§ 186.22, subd. (f)). The law also created a stricter requirement for proof of “‘a
pattern of criminal gang activity,’” which is necessary to prove that 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
12.
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).)
However, the California Supreme Court has recognized an exception to this rule for new
laws that mitigate punishment. (Padilla, supra, 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, at p. 745; see Padilla, at p. 160.) 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.’ [Citation.] 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.” (Padilla, at p. 160.)
In that regard, 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
13.
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 enhancement,’ with obvious benefit to defendants like Tran.
[Citation.]” (People v. Tran, supra, at pp. 1206–1207.)
B. Analysis
In our recent opinion, Mendoza v. Superior Court (May 3, 2023, F084354) __
Cal.App.5th __ [2023 Cal.App. LEXIS 340], we addressed many of the issues raised in
this appeal and held 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, we held the evidence presented at a preliminary hearing that was sufficient to
hold a defendant to answer under the old law is not necessarily sufficient to hold a
defendant to answer despite the change in the law. The parties agree with our conclusion
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.
14.
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 there is 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,
Morrissette’s case is not final and Assembly Bill 333’s amendments are retroactive under
Estrada. (See People v. Tran, supra, 13 Cal.5th at pp. 1206–1207.) Accordingly, 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 preliminary examination that a public offense has been committed,
and there is sufficient cause to believe that the defendant is guilty.” In situations such as
this, where a change in the law amends the elements of an offense, it follows that 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, inasmuch as
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 that 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. The Holding Order as to the Substantive Gang Charge, Gang Enhancements,
and Gang Special Circumstance Must Be Vacated
Here, the parties do not dispute the evidence produced at the preliminary
hearing—specifically, the evidence of the predicate offenses—was insufficient to hold
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Morrissette to answer to the substantive gang charge (§ 186.22, subd. (a); count 7) and
the gang enhancements (§ 186.22, subd. (b)(1)) under the amended law. Again, we
agree. However, the parties dispute whether Assembly Bill 333’s amendments to section
186.22 apply to the gang special circumstance (§ 190.2, subd. (a)(22)). Morrisette asserts
the amendments to section 186.22 apply to the gang special circumstance, which
incorporates section 186.22, by reference. The People argue applying Assembly Bill
333’s amendment to section 186.22, subdivisions (e) and (f) in this context would result
in an unconstitutional amendment to the gang-murder special circumstance created by the
voters via Proposition 21. We agree with Morrissette that Assembly Bill 333’s
amendments apply to the section 190.2, subdivision (a)(22) finding.
Section 190.2, subdivision (a)(22) was enacted as part of Proposition 21, an
initiative measure adopted by the electorate in the March 2000 primary election. (People
v. Shabazz (2006) 38 Cal.4th 55, 65.) Section 190.2, subdivision (a)(22) makes first
degree murder a capital crime if “[t]he defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as defined in subdivision (f)
of Section 186.22, and the murder was carried out to further the activities of the criminal
street gang.” (Italics added.)
There is a split of authority on whether applying the changes effectuated by
Assembly Bill 333 to the gang special circumstance amounts to an unconstitutional
amendment to Proposition 21. In People v. Lopez (2021) 73 Cal.App.5th 327, the Second
Appellate District, Division Eight, concluded “Assembly Bill 333’s changes to section
186.22 affect not only the gang enhancement allegations under that statute but other
statutes that expressly incorporate provisions of section 186.22,” including section 190.2,
subdivision (a)(22). (Lopez, at p. 346.) The Lopez court held, because “the definition of
a criminal street gang has been narrowed by Assembly Bill 333 and new elements added
in order to prove a criminal street gang and a pattern of criminal activity,” the
16.
requirements for proving a gang special circumstance under section 190.2, subdivision
(a)(22) have likewise changed. (73 Cal.App.5th at p. 347.)
In People v. Rojas (2022) 80 Cal.App.5th 542, review granted October 19, 2022,
S275835, a divided panel in our district reached the opposite conclusion. (Id. at pp. 557–
558.) The Rojas majority held, “[b]ecause Assembly Bill 333 ‘takes away’ from the
scope of conduct that Proposition 21 made punishable under section 190.2” (id. at p.
555), “it is unconstitutional to the extent it would amend that initiative” (id. at p. 557).
The Rojas majority relied on the fact California voters restricted the Legislature’s ability
to amend the provisions of Proposition 21. (Rojas, at p. 555.) The majority reasoned:
“While the Legislature was free to amend Proposition 21 …, it could only do so with a
two-thirds vote in each house. (Voter Information Guide, Primary Elec. (Mar. 7, 2000)
text of Prop. 21, … § 39, p. 131.) Assembly Bill 333 did not comply with that
requirement and therefore cannot amend Proposition 21.” (Ibid.) As a result, Rojas
implies that a special circumstance murder allegation under section 190.2, subdivision
(a)(22) may be proven based on a different, less restrictive definition of a “criminal street
gang” than is found in the current version of section 186.22. (See Rojas, at p. 558
[holding “Assembly Bill 333 does not alter the scope or effect of section 190.2,
subdivision (a)(22)”].)
In People v. Lee (2022) 81 Cal.App.5th 232, review granted October 19, 2022,
S275449, Division Four of the Second Appellate District concluded Assembly Bill 333
does not unconstitutionally amend section 190.2, subdivision (a)(22). (Lee, at p. 242.)
Focusing on the question of voter intent, the Lee court opined there is “nothing to suggest
that the electorate intended to impose a time-specific incorporation of the term ‘criminal
street gang’ in the gang-murder special-circumstance statute.” (Lee, at p. 245.)
Accordingly, Lee holds “that the term ‘criminal street gang’ as incorporated in the gang-
murder special-circumstance statute was ‘intended to conform at all times’ and ‘remain
permanently parallel’ to section 186.22.” (Ibid., quoting In re Jovan B. (1993) 6 Cal.4th
17.
801, 816–817 & fn. 10.) The Lee court further reasoned, the voters reenacted section
186.22, subdivision (f) without substantive change; so “subdivision (f) of section 186.22
cannot be deemed ‘among the initiative’s statutory provisions’ made immune from
legislative amendment by force of article II, section 10 of the state Constitution.” (Lee, at
p. 242.) “In short, the voters left intact the Legislature’s power to amend the definition of
a criminal street gang in section 186.22, subdivision (f).” (Ibid.) And, the Lee court
concluded, there was no basis to conclude the voters did not intend to permit any future
amendment to 186.22, subdivision (f) to be incorporated into the gang-murder special
circumstance. (Lee, at p. 242.) Rather, “[i]n enacting Proposition 21, the electorate
clearly knew how to express the intent to freeze a statutory definition,” given the express
time-specific incorporations in other sections; but it did not include a time-specific
incorporation of section 186.22, subdivision (f) in section 11 of Proposition 21, the
provision in Proposition 21 providing for the gang-murder special circumstances. (Lee,
at pp. 242–243.) Accordingly, “[t]here is simply no basis to believe that the voters
understood they were precluding future amendments of subdivision (f) of section 186.22
as referred to in the gang-murder special circumstance, while permitting such future
amendments for section 186.22 itself.” (Id. at p. 243.)
Relatedly, in People v. Lopez (2022) 82 Cal.App.5th 1, another panel of our court
held Assembly Bill 333 did not unconstitutionally amend the crime of gang conspiracy
proscribed by section 182.5 that was enacted as part of Proposition 21.3 (People v.
Lopez, supra, at p. 21.) Like Lee, the Lopez court reasoned, in part, that there was no
time-specific provision in Proposition 21 for section 182.5 as there was for other
provisions of the criminal law. (Lopez, at pp. 23–24.) Accordingly, the Lopez court
concluded, “[W]e agree with Lee’s conclusion that ‘the electorate clearly knew how to
express the intent to freeze a statutory definition,’” and “[t]he absence of such time-
3“[C]ertain elements of the gang conspiracy offense proscribed by section 182.5 are
defined by incorporation of provisions that were amended by Assembly Bill 333, namely, section
186.22, subdivisions (e) and (f).” (People v. Lopez, supra, 82 Cal.App.5th at p. 18.)
18.
specific language in section 182.5 leads to our rejection of the People’s claim.” (Id. at
pp. 24, 25.)
We agree with and endorse the reasoning of Lee. Applying that reasoning here,
we conclude the holding order as to the section 190.2, subdivision (a)(22) special
circumstance, the gang enhancements, and the substantive gang charge (count 7) must be
vacated. We next consider the appropriate remedy.
III. Reopening of the Preliminary Hearing Proceedings Is Appropriate
The parties dispute the appropriate remedy; Morrisette contends the gang-related
charges should be dismissed and the People may refile them, and the People argue they
should be entitled to reopen the preliminary hearing to present additional evidence on
those charges. As our court concluded in Mendoza v. Superior Court, supra, __
Cal.App.5th __ [2023 Cal.App. LEXIS 340], and as further explained herein, we
conclude the prosecutor should be permitted to reopen the preliminary hearing
proceedings to present additional evidence on the amended elements of the gang-related
charges.
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
sufficient cause to believe that the defendant is guilty”].) Accordingly, “section 995
19.
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 the 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 “without setting aside the
information” a court may, upon motion of the prosecuting attorney, “order further
proceedings to correct errors alleged by the defendant if the court finds that such errors
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).)
20.
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, 71–72 [reversing enhancement in light of
amendment to statute adding a new element to it, and remanding to give People
opportunity to prove up the 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 issue as one of sufficiency of the evidence.’”’” (People v. Sek, supra, at pp.
21.
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 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.]” (Shirley, supra, at p. 71.) The Shirley court explained, the Burks
22.
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 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, Morrisette asserts the order
denying his section 995 motion must be reversed with instructions to the trial court to
vacate the gang offense (count 7) and reverse the gang enhancement allegations. He
argues the evidence at the preliminary hearing failed to establish the current offense
benefitted a criminal street gang (Deadly Young Psyclones) in a manner that was more
than reputational. He further contends the evidence failed to establish the predicate
offenses occurred within three years of the prior offense and within three years of the
current offense (the People presented evidence of 2011 and 2017 offenses) or that they
commonly benefitted the gang in a way that was more than reputational as required under
the amended law. He also asserts the preliminary hearing failed to establish the Deadly
Young Psyclones 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.”5 (Italics omitted.) However,
5In his “Motion to File a Supplemental Reply,” Morrissette also asserted the charges and
enhancements should be dismissed and, “[I]f the district attorney wishes to still pursue the
dismissed charges, then the district attorney may file a motion for a mini preliminary hearing
pursuant to … section 995a, subdivision (b).”
23.
in a supplemental brief and his reply to our order to show cause, he asserts the gang
charge, enhancements, and gang murder special circumstance must be dismissed, but the
People can refile them and do a new preliminary hearing on those charges. In their
response to defendant’s petition and to our order to show cause, the People 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 occurred within the new requisite time frame and that 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 that the matter should be remanded to
allow them an opportunity to present evidence on the new statutory requirements.6 We
conclude remand is appropriate for the court to grant the prosecution’s request to reopen
preliminary hearing proceedings and to present evidence on the new elements of the gang
allegations.
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
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; accord, People v. Meza, supra, 198 Cal.App.4th
at p. 473; Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 219, fn. omitted
6The People point out they requested further proceedings pursuant to section 995a in
response to Morrisette’s section 995 motion, but the court did not rule on their request. Such a
request appears sufficient under the case law to constitute a motion for the purpose of satisfying
section 995a, subdivision (b)(1). (See Caple, supra, 195 Cal.App.3d at pp. 598–599 [affirming
order remanding and reopening preliminary hearing proceedings for correction of minor error
where prosecution requested such proceedings pursuant to § 995a in response to § 995 motion
for dismissal]; accord, People v. Meza (2011) 198 Cal.App.4th 468, 472, 477–479 [reversing
order granting § 995 motion to set aside information and granting People’s “motion” for further
proceedings under § 995a, which was based upon the People’s request filed in their response to
§ 995 motion].)
24.
[“[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 of 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
rehearing of any of the preliminary hearing evidence.” (Id. at p. 603.) The court noted
25.
“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 gang-related enhancements because 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, enhancements, or special circumstance allegation. 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
under that section, we note in this instance, the omitted evidence was “insignificant” in
26.
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 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 the bevy of charges and enhancements alleged against the four defendants. The
additional evidence the People now 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.” (Caple, supra, 195 Cal.App.3d at p. 602.) Considering “the
quantum of proof needed to establish probable cause for the charged offenses” (ibid.),
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
the preliminary hearing. Rather, the parties do not dispute the People met their burden of
27.
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; Tharp v. Superior Court,
supra, 154 Cal.App.3d at p. 219), here, neither party asserts error in the original
commitment of Morrissette except based upon the subsequent change in the law. 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 not charged together with a felony”]; People v.
28.
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”].)
In summary, we conclude the matter should be remanded to the superior court
with directions to (1) vacate the portion of the magistrate judge’s holding order holding
Morrissette to answer on the substantive gang charge (count 7), gang enhancement
allegations on counts 1 2, 3, and 6, and the gang special circumstance, and (2) grant the
People’s request to reopen the preliminary hearing proceedings to present evidence on the
gang-related elements added by Assembly Bill 333. Nothing in this opinion should be
read to preclude defendant 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 Superior Court of Kern
County in case No. BF174718A to vacate the portion of the magistrate judge’s order
holding Morrissette to answer on the substantive gang charge (count 7), the gang
enhancement allegations on counts 1 2, 3, and 6, and the gang special circumstance and
to grant the People’s request to reopen the preliminary hearing proceedings as stated
herein. Alternatively, the prosecution may elect to proceed on an amended information
without the substantive gang charge, the gang enhancement allegations, and the gang
special circumstance. We do not disturb the magistrate judge’s order in any other
respect.
PEÑA, J.
I CONCUR:
DESANTOS, J.
30.
POOCHIGIAN, Acting P. J., Concurring and Dissenting.
I concur with the majority and the parties that Assembly Bill No. 333 (2021–2022
Reg. Sess.) (Assembly Bill 333) is retroactive to the preliminary hearing in light of
People v. Tran (2022) 13 Cal.5th 1169, 1206–1207. I respectfully dissent from the
majority’s conclusion that Assembly Bill 333 does not unconstitutionally amend
Proposition 21.
Section 11 of Proposition 21 increased the sentences for gang-related murder.
(People v. Lee (2022) 81 Cal.App.5th 232, 244, review granted Oct. 19, 2022, S275449.)
There are two obvious ways such a provision could be substantively amended:
(1) changing the sentence applicable to gang-related murders or (2) changing which
gang-related murders are subject to the increased sentences. Assembly Bill 333 directly
and intentionally does the latter. Therefore, it is an amendment of Proposition 21.
Indeed, no reasonable definition of “amendment” could exclude the ways
Assembly Bill 333 has changed Proposition 21. If the voters say they want “Penalty X”
to apply to “Conduct Y,” the definitions of both Penalty X and Conduct Y are equally
integral, indispensable components to the singular policy choice they have made.
Changing Conduct Y amends that choice just as changing Penalty X does. Here,
Assembly Bill 333 changes the conduct subject to Proposition 21’s enhanced sentences.
Proposition 21 expressly allows such amendments by the Legislature. (Prop. 21,
§ 39.) It only requires that they pass by a two-thirds vote of each house (or are
subsequently approved by the voters). (Ibid.) Assembly Bill 333 did not satisfy this
requirement and is, therefore, invalid insofar as it would affect Proposition 21. (People v.
Rojas (2022) 80 Cal.App.5th 542, 557–558, review granted Oct. 19, 2022, S275835.)
The majority posits that the electorate did not “freeze” the statutory definition of
gang-related murder, nor “ ‘preclude[] future amendments of subdivision (f) of
section 186.22.’ ” (Maj. opn., ante, at p. 18, citing People v. Lee, supra, 81 Cal.App.5th
at p. 243.) But no one is arguing otherwise. The voters did not preclude future
amendments, they simply required that they be passed by a supermajority. And that
requirement was not satisfied here.
For these reasons, I respectfully dissent as to the Proposition 21 issue and
otherwise concur in the majority opinion.
POOCHIGIAN, Acting P. J.
2.