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Gang Enhancements Vacated

Mendoza v. Super. Ct. Court: California Courts of Appeal, Docket: F084354 (Fifth Appellate District), Opinion Date: May 3, 2023. Petitioner 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. In the motion, Petitioner argued the gang offense and enhancements should be dismissed in light of the changes to section 186.22 effectuated by Assembly Bill No. 333, which became effective January 1, 2022. He asserted the gang offense and enhancements 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 the charges. The court denied the section 995 motion, and initially, we denied Petitioner’s writ petition from the court’s order. Petitioner then petitioned the California Supreme Court for review, and the matter was transferred back to the Fifth Appellate District. The Fifth Appellate District agreed with the parties that Assembly Bill 333 applies retroactively to the preliminary hearing proceedings. The court rejected Petitioner’s contention that dismissal of all gang-related charges is required. The court issued 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. The court explained that even assuming the language of section 995a, subdivision (b)(1) does not support reopening the preliminary hearing proceedings under the circumstances, the remedy the court adopted is supportable as a rule of judicial procedure by application of the principles governing postconviction reversals based upon a change in the law.

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