California Criminal Law

California Court Rules on Retroactive Application of Assembly Bill 333 in Gang-Related Cases

• Ruben Mendoza and Jaime Ramos were charged with attempted murder, shooting at an inhabited dwelling, assault with an assault weapon, evading a police officer, active participation in a criminal street gang, and resisting, delaying, or obstructing a police officer.

• Mendoza filed a section 995 motion to dismiss the substantive gang charge and the gang enhancements attached to counts 1, 2, 3, and 4 in light of the passage of Assembly Bill 333.

• Mendoza argued that the 2015 predicate offense presented involved only one alleged gang member and that the 2013 predicate offense does not fall within the new requisite timeframe because it was not committed within three years of the current offense.

• Mendoza further contended that there was no evidence that the predicate offenses constituted collective criminal activity or that they benefited the gang, and that the prosecution failed to establish Varrio Rexland Park as an ongoing, organized association whose members engage in a pattern of criminal gang activity.

• The court denied Mendoza’s section 995 motion to dismiss, stating that the case law allows the district attorney to retry the case on the amended elements without redoing the preliminary hearing.

• Mendoza filed a section 999a petition for writ of mandamus seeking review of the court’s order denying his section 995 motion to dismiss the active gang participation charge and gang enhancements.

• The court found that Assembly Bill 333’s changes to section 186.22 should apply retroactively to the evidence presented at the preliminary hearing.

• The California Supreme Court has recognized an exception to the rule that new criminal laws do not govern prosecutions initiated before the law went into effect for new laws that mitigate punishment.

• The California Supreme Court has held that Assembly Bill 333 applies retroactively under the rule of Estrada.

• The parties agree that the evidence at the preliminary hearing was insufficient to hold Mendoza to answer to the active gang participation charge and gang enhancements based on the changes in the law.

• The prosecutor may move to reopen the preliminary hearing proceedings to present additional evidence on the amended elements of the gang-related charges or proceed without them.

• Conduct under the old law may no longer constitute an offense, and 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. Legal Principles Governing Remand in California Criminal Cases

• In California, a defendant may challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing.

• Section 995a, subdivision (b) of the California Penal Code allows a court to order further proceedings to correct errors alleged by the defendant if those 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.

• Before a trial court may institute further proceedings to correct preliminary hearing errors, section 995a requires it to make two separate findings: a minor error of omission, ambiguity, or technical defect which can be expeditiously cured.

• In cases where 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.

• The California Supreme Court has held that when 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.

• The Burks rule forbids retrial after a reversal ordered because the evidence introduced at trial was insufficient to support the verdict.

• The rule achieves its aim of protecting the defendant against the harassment and risks of unnecessary repeated trials on the same charge by giving the prosecution a powerful incentive to make the best case it can at its first opportunity.

• In his section 999a petition for writ of mandamus, Mendoza asserts the court erred in not dismissing the gang offense and enhancements.

• Mendoza argues the evidence at the preliminary hearing did not establish that the benefit of the current offense was anything more than reputational.

• Mendoza further contends the evidence failed to establish the 2013 predicate offense occurred within three years of the current offense and the 2015 predicate offense was not a valid predicate because it only involved one individual—Miguel Perez.

• Mendoza also contends there was no evidence either predicate offense benefitted the gang in a way that was more than reputational.

• Mendoza argues the preliminary hearing failed to establish the Varrio Rexland Park gang was an ongoing and “organized” association.

California Court Rules on Retroactive Application of Assembly Bill 333 in Gang-Related Cases

• Ruben Mendoza and Jaime Ramos were charged with attempted murder, shooting at an inhabited dwelling, assault with an assault weapon, evading a police officer, active participation in a criminal street gang, and resisting, delaying, or obstructing a police officer.

• Mendoza filed a section 995 motion to dismiss the substantive gang charge and the gang enhancements attached to counts 1, 2, 3, and 4 in light of the passage of Assembly Bill 333.

• Mendoza argued that the 2015 predicate offense presented involved only one alleged gang member and that the 2013 predicate offense does not fall within the new requisite timeframe because it was not committed within three years of the current offense.

• Mendoza further contended that there was no evidence that the predicate offenses constituted collective criminal activity or that they benefited the gang, and that the prosecution failed to establish Varrio Rexland Park as an ongoing, organized association whose members engage in a pattern of criminal gang activity.

• The court denied Mendoza’s section 995 motion to dismiss, stating that the case law allows the district attorney to retry the case on the amended elements without redoing the preliminary hearing.

• Mendoza filed a section 999a petition for writ of mandamus seeking review of the court’s order denying his section 995 motion to dismiss the active gang participation charge and gang enhancements.

• The court found that Assembly Bill 333’s changes to section 186.22 should apply retroactively to the evidence presented at the preliminary hearing.

• The California Supreme Court has recognized an exception to the rule that new criminal laws do not govern prosecutions initiated before the law went into effect for new laws that mitigate punishment.

• The California Supreme Court has held that Assembly Bill 333 applies retroactively under the rule of Estrada.

• The parties agree that the evidence at the preliminary hearing was insufficient to hold Mendoza to answer to the active gang participation charge and gang enhancements based on the changes in the law.

• The prosecutor may move to reopen the preliminary hearing proceedings to present additional evidence on the amended elements of the gang-related charges or proceed without them.

• Conduct under the old law may no longer constitute an offense, and 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. Legal Principles Governing Remand in California Criminal Cases

• In California, a defendant may challenge an information based on the sufficiency of the record made before the magistrate at the preliminary hearing.

• Section 995a, subdivision (b) of the California Penal Code allows a court to order further proceedings to correct errors alleged by the defendant if those 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.

• Before a trial court may institute further proceedings to correct preliminary hearing errors, section 995a requires it to make two separate findings: a minor error of omission, ambiguity, or technical defect which can be expeditiously cured.

• In cases where 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.

• The California Supreme Court has held that when 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.

• The Burks rule forbids retrial after a reversal ordered because the evidence introduced at trial was insufficient to support the verdict.

• The rule achieves its aim of protecting the defendant against the harassment and risks of unnecessary repeated trials on the same charge by giving the prosecution a powerful incentive to make the best case it can at its first opportunity.

• In his section 999a petition for writ of mandamus, Mendoza asserts the court erred in not dismissing the gang offense and enhancements.

• Mendoza argues the evidence at the preliminary hearing did not establish that the benefit of the current offense was anything more than reputational.

• Mendoza further contends the evidence failed to establish the 2013 predicate offense occurred within three years of the current offense and the 2015 predicate offense was not a valid predicate because it only involved one individual—Miguel Perez.

• Mendoza also contends there was no evidence either predicate offense benefitted the gang in a way that was more than reputational.

• Mendoza argues the preliminary hearing failed to establish the Varrio Rexland Park gang was an ongoing and “organized” association.