California Penal Code and AB 333

California Court mandates new proceedings in gang-related shooting case after changes to Penal Code section 186.22

• Guadalupe Mendoza sought an alternative writ of mandate/prohibition after the superior court denied his Penal Code section 995 motion to dismiss a charge for active participation in a criminal street gang and gang enhancements attached to multiple counts.

• Mendoza argued the gang offense and enhancements should be dismissed in light of the changes to section 186.22 effectuated by Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which became effective January 1, 2022.

• The court denied the section 995 motion and initially denied Mendoza’s writ petition from the court’s order. Mendoza then petitioned the California Supreme Court for review, and the matter was transferred back to the court of appeal.

• In its transfer order, the California Supreme Court directed the court of appeal to vacate its order denying the petition for writ of mandamus and to issue an order directing the respondent superior court to show cause why the relief sought in the petition should not be granted.

• The People filed a response conceding Assembly Bill 333 should apply retroactively to the gang enhancements and substantive charge alleged in this case. They argue the matter should be remanded and they should be permitted the opportunity to conduct further preliminary hearing proceedings on the substantive gang offense and gang-related enhancements.

• Mendoza contends Assembly Bill 333 requires us to dismiss the gang offense and enhancements. However, he asserts the People may refile the information below.

• The court agreed with the parties that Assembly Bill 333 applies retroactively to the preliminary hearing proceedings.

• The court rejected Mendoza’s contention that dismissal of all gang-related charges is required.

• The court will issue a writ of mandate directing the respondent court to vacate the magistrate judge’s holding order as to the active gang participation offense and the gang enhancements, and to hold further proceedings consistent with this opinion.

• The case involves a shooting incident where Camilo G. was shot in the leg by individuals who exited a car that stopped in the roadway. Mendoza, Ruben Mendoza, and Jaime Ramos were apprehended and charged in connection with Camilo G.’s shooting.

• The preliminary hearing occurred over the course of two days in June 2019, during which the prosecution presented 11 witnesses and 24 exhibits related to the charged offense, subsequent searches conducted pursuant to search warrants, DNA evidence, and gang evidence, including evidence related to the Varrio Rexland Park criminal street gang, predicate offenses, and the three defendants’ alleged gang affiliations and prior police contacts.

• Evidence presented at the preliminary hearing was insufficient under the new definitions of “pattern of criminal gang activity” and “criminal street gang” to support the charges.Officer Testimony on Varrio Rexland Park Gang Activities

• Officer Geherty testified that Varrio Rexland Park (VRP) gang considers all other gangs to be its rivals, and Can’t Stop Banging considers VRP to be a rival.

• VRP is a neighborhood gang that claims the color royal blue and has more than three members in Bakersfield.

• VRP engages in a continuing pattern of criminal conduct, including burglary, narcotics sales, assaults, attempted homicides, illegal possession of firearms, and shooting at inhabited dwellings.

• There are several ways to join the VRP gang, including being born into it, being rushed in or jumped in, or committing crimes to put in work for the gang.

• Young gang members may work their way into the gang by committing crimes with other VRP members or on behalf of the gang.

• Officer Geherty was familiar with a 2013 assault case involving VRP members Carlos Gomez, Justin Valencia, and Miguel Perez and a 2015 shooting case involving VRP member Miguel Perez and his associates.

• Geherty contacted defendant Mendoza on July 6, 2017, within VRP gang territory and found him in possession of a loaded firearm, a primary activity of the VRP gang.

• Mendoza and Ruben Mendoza were identified as VRP members in a 2016 battery investigation, in which they assaulted an individual for disrespecting Mendoza.

• Jaime Ramos was considered an active member of the VRP gang based on his participation in the crime by acting as the driver of the suspect vehicle that led to the shooting and leading law enforcement on a pursuit.

• Officer Geherty opined that the VRP gang was involved in the shooting of Camilo G. based on the location of the shooting, police pursuit, and VRP gang graffiti, clothing, and apparel found at each defendant’s residence.

• Geherty testified that committing crimes together elevates the status of VRP gang members and allows them to vouch for each other, increases their rate of success for committing a crime, and is a way to train younger gang members or bring them into the gang by making them do violent crimes.

• The prosecutor argued that the shooting was gang-related based on the evidence of association and motive for the shooting being the gang rivalry.