Arevalo v. Superior Court CA2/6 ( 2023 )

Filed 5/31/23 Arevalo v. Superior Court CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
CHRISTOPHER AREVALO, 2d Crim. No. B324002
(Super. Ct. No. 2017011403)
Petitioner, (Ventura County)
v.
THE SUPERIOR COURT OF
VENTURA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Christopher Arevalo petitions for a writ of prohibition
challenging the trial court’s denial of his motion to dismiss under
Penal Code section 995.1 We shall grant the writ.
All statutory references are to the Penal Code. After we
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summarily denied the petition, the Supreme Court granted
review and transferred the matter back to us with directions to
vacate our order and issue a new order directing the superior
Arevalo is charged in a 2019 information with first degree
murder with allegations that the crime was gang-related. (§§
186.22, subd. (b)(1), 187, subd. (a), 189, 190.2, subd. (a)(22).)
Following the 2022 enactment of Assembly Bill No. 333 (AB 333),
he moved to dismiss the gang enhancement allegations on the
ground that the new law applies retroactively to his case, such
that the evidence presented at the preliminary hearing is now
insufficient to support a finding of probable cause to hold him
over for trial on those allegations. (§ 995, subd. (a)(2)(B).)
The trial court accepted the prosecution’s concessions that
AB 333 applies retroactively to Arevalo’s case, and that under the
new law the evidentiary showing at the preliminary hearing is
insufficient as to the gang enhancement allegations. The court
also acknowledged our Supreme Court’s then-recent holding that
AB 333 applies retroactively. (People v. Tran (2022) 13 Cal.5th
1169, 1205-1206 (Tran).) The court nevertheless denied Arevalo’s
section 995 motion, agreeing with the prosecution that he is
merely entitled to the benefits of the new law at his upcoming
trial. The court erred.
AB 333 applies retroactively to all criminal cases, such as
this one, that were pending when the law went into effect. (Tran,
supra, 13 Cal.5th at pp. 1206-1207, citing In re Estrada (1965) 63
Cal.2d 740, 745 (Estrada).) The new law “‘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
court to show cause why the petition should not be granted. The
People filed a written return to the petition, Arevalo filed a reply,
and we heard oral argument.
2
underlying offenses provided more than a reputational benefit to
the gang. . . .’ [Citations.]” (Tran, at p. 1207.)
Because AB 333 applies retroactively to Arevalo’s case, the
trial court was required to apply that law in adjudicating his
section 995 motion. And in adjudicating that motion, the court
was also required to retroactively apply the new law to the
preliminary hearing proceedings. The People recently conceded
in another case that the new law so applies in these
circumstances, and the Court of Appeal accepted that concession.
(Mendoza v. Superior Court (May 3, 2023) __ Cal.App.5th __,
2023 Cal.App.Lexis 340, *8-14 (Mendoza).) The People are thus
estopped from arguing to the contrary here. (See, e.g., Jackson v.
County of Los Angeles (1997) 60 Cal.App.4th 171, 181-183.)
In any event, the arguments against retroactivity raised by
the People in this case are plainly without merit. First, the
People offer People v. Stamps (2020) 9 Cal.5th 685, 700 (Stamps),
for the proposition that “[t]he 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.” But this does not mean courts can apply a
new ameliorative law in a manner that limits its retroactivity. In
Stamps, the court made clear the petitioner was entitled to a
remand for the trial court to exercise its newly-granted discretion
under Senate Bill 1393 to strike his serious felony enhancement,
notwithstanding that he had admitted the truth of the
enhancement pursuant to a negotiated plea. The court also
recognized, however, that if the trial court struck the
enhancement the prosecution could withdraw its assent to the
plea agreement because nothing in the text or legislative history
of AB 333 evinced any intent to affect such prior agreements. (Id.
at p. 707.) Nothing about this conclusion supports the People’s
position that the trial court did not have to apply AB 333 in
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ruling on Arevalo’s section 995 motion, which was both filed and
adjudicated after the new law went into effect.
The People also refer us to the language of section 995,
subdivision (a)(2)(B), which requires the trial court to determine
whether the defendant “had been committed” without probable
cause. The People contend this language compels the court to
base its ruling on the law as it existed when the preliminary
hearing was held. The referenced language cannot be reasonably
construed as placing a limitation on the retroactivity of
ameliorative changes in the law, which are intended to apply “as
broadly as possible.” (People v. Conley (2016) 63 Cal.4th 646,
657.) The legislature did not intend the law to be less than 100
percent retroactive.
The trial court erred in concluding that the new law did not
apply retroactively to the section 995 motion and the preliminary
hearing proceedings. But we agree with our colleagues in
Mendoza that the People should have the opportunity to reopen
the preliminary hearing proceedings as contemplated in section
995a, subdivision (b)(1).2 “[E]ven assuming the language of
section 995, subdivision (b)(1) does not support reopening the
2 Subdivision (b)(1) of section 995a states: “Without setting
aside the information, the 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 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. The court may remand the
cause to the committing magistrate for further proceedings, or if
the parties and the court agree, the court may itself sit as a
magistrate and conduct further proceedings. When remanding
the cause to the committing magistrate, the court shall state in
its remand order which minor errors it finds could be
expeditiously cured or corrected.”
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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. . . . 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.
[Citation.]” (Mendoza, supra, 2023 Cal.App.Lexis 340, *27-29.)
We shall order the matter remanded accordingly.
DISPOSITION
The petition for writ of prohibition is granted. Let a
peremptory writ of mandate issue, directing respondent court to
vacate its order denying Arevalo’s section 995 motion and the
magistrate judge’s order holding Arevalo to answer on the gang
enhancement allegations. On remand, the prosecution may
either move to reopen the preliminary hearing to prove the gang
enhancement allegations under the new law, or proceed on an
amended information without the gang enhancement allegations.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J. BALTODANO, J.
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Kristi Peariso, Judge
Superior Court County of Ventura
______________________________
Claudia Bautista, Public Defender, Thomas Hartnett,
Senior Deputy Public Defender, for Petitioner.
Erik Nasarenko, District Attorney, Miriam R. Arichea,
Deputy District Attorney, for Real Party Interest.