Chavez v. Super. Ct. of L.A. Cty.

317 Cal.Rptr.3d 627

Carlos CHAVEZ, Petitioner,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The People, Real Party in Interest.

B332361

Court of Appeal, Second District, Division 2.

Filed January 25, 2024

ORIGINAL PROCEEDINGS in mandate. Lisa B. Lench, Judge. Petition denied. (Los Angeles County Super. Ct. No. BA452909)

Law Office of Tracy Casadio and Tracy Casadio for Petitioner.

No appearance for Respondent.

George Gascón, District Attorney, Grace Shin, Deputy District Attorney, for Real Party in Interest.

HOFFSTADT, J.

A grand jury returned an indictment that, among other things, charges a defendant with four violent felonies, and with committing them "for the benefit of, at the direction of, or in association with" a criminal street gang; the latter allegation is known colloquially as the gang enhancement. (Pen. Code, § 186.22, subd. (b)(1)(C).)¹ It is undisputed that the evidence before the grand jury established probable cause to believe the gang enhancement was true as the enhancement was defined at that time. However, our Legislature subsequently amended the definition of the gang enhancement—in Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 4) (Assem. Bill No. 333)—to add new elements. The defendant is now awaiting trial, and has moved to dismiss the gang enhancement allegations because the People had not presented evidence to the grand jury to support the new elements of the enhancement (which did not exist at the time of the initial grand jury proceedings). Is dismissal required? It is not. Instead, we hold that a trial court has the inherent authority to reserve ruling on a motion to dismiss, to resubmit gang allegations to the grand jury for the People to present evidence bearing on the new elements, and to thereafter rule on the motion by reviewing the sufficiency of that new evidence. Because the trial court here—in substance, if not form—followed this procedure, we deny the defendant’s petition for a writ of mandate.

FACTS AND PROCEDURAL BACKGROUND

On December 22, 2015, members of the Valerio Street gang drove to Saticoy Street in Van Nuys, California. Saticoy Street is within the gang’s territory. Now on foot, three Valerio Street gang members accosted four men perceived to be members of a rival gang, shouted out their gang’s name, and the Valerio Street members armed with guns then opened fire. One of the victims died; three others survived.

On May 12, 2017, a grand jury returned a 20-count indictment against nine defendants. With respect to the Saticoy Street shooting, the indictment charges Carlos Chavez (defendant) and five others with one count of murder (§ 187) and three counts of attempted premeditated murder (§§ 664, subd. (a), 187). The indictment further alleges that defendant committed those crimes "for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members" pursuant to the gang enhancement statute (§ 186.22, subd. (b)(1)(C)).²

On January 1, 2022, Assem. Bill No. 333 became effective. Assem. Bill No. 333 amended the gang enhancement statute to " ‘essentially add[ ] new elements.’ " (People v. Tran (2022) 13 Cal.5th 1169, 1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210 (Tran).) Prior to the enactment of Assem. Bill No. 333, the gang enhancement statute defined a "criminal street gang" as an "ongoing organization" or "group of three or more persons" (1) that "ha[s] as one of its primary activities the commission of one or more [statutorily enumerated] criminal acts"; (2) that "ha[s] a common name or common identifying sign or symbol"; and (3) "whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (Former § 186.22, subd. (f), Stats. 2017, ch. 561, § 178.) The pre-Assem. Bill No. 333 version went on to define a "pattern of criminal gang activity" as requiring proof of "two or more" convictions for statutorily enumerated offenses as long as they were "committed on separate occasions" and all committed within three years of each other. (Id., subd. (e).) Assem. Bill No. 333 amended the gang enhancement statute to require, for the first time and as pertinent here, proof that the offenses making up the "pattern of criminal gang activity" (1) were committed "collectively" (rather than "individually or collectively") (§ 186.22, subd. (f)); (2) "commonly benefited [the] criminal street gang," and requiring that the "common benefit [be] more than reputational" (id., subds. (e)(1) & (g)); and (3) were committed within three years of each other and within three years of the charged crime, and can no longer include the charged crime (id., subds. (e)(1) & (e)(2)). (Accord, Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 51, 308 Cal.Rptr.3d 65 (Mendoza) [enumerating these changes].)

On August 31, 2023, defendant moved to dismiss the gang enhancement allegations from the indictment. Specifically, defendant argued that Assem. Bill No. 333 applied retroactively to his still-pending case and that the evidence presented to the grand jury did not establish probable cause to believe (1) that the prior offenses constituted a "pattern of criminal gang activity" that were committed collectively to benefit the gang, or (2) that any benefit to the gang was more than reputational.

In their opposition to defendant’s motion and at the ensuing hearing, the People conceded that Assem. Bill No. 333’s new requirements applied retroactively to the gang enhancements alleged against defendant, and that the evidence presented to the grand jury did not establish probable cause to believe that the prior offenses were committed collectively by Valerio Street gang members or that their benefit to the gang was more than reputational. However, the People sought the trial court’s permission to present additional evidence to the grand jury, representing to the trial court that the People could "meet the requirements of the new[ly amended] gang statute."

The trial court ruled that it would "give the People the opportunity present [evidence relevant to the newly added elements of the gang enhancement statute] to the grand jury if they choose to do so" and "den[ied defendant’s] motion [to dismiss] on that basis." Because the court’s order contemplated the presentation of this new evidence to the grand jury, we infer that the court’s denial of the motion was without prejudice—and hence equivalent to reserving a ruling on that motion pending resubmission to the grand jury.

Defendant petitioned this court for a writ of mandate, arguing that the trial court lacked the authority to reopen the grand jury proceedings to permit the People to present evidence regarding the elements Assem. Bill No. 333 added to the gang enhancement statute, and that he was entitled to have the gang enhancement allegations dismissed entirely. We called for a response, and the People submitted a two-page letter indicating they "have not been able to find any cases" directly on point and, on that basis (and hence without any attempt to argue by analogy or engage in further legal research), did "not oppose" defendant’s petition. However, the People did not withdraw their earlier position that they have evidence to present to the grand jury regarding the newly added elements of the gang enhancement statute. We reject the People’s concession to the legal merit of the writ petition because that concession is wrong—as we explain below.³

DISCUSSION

[1] This writ petition presents the following question: Does a trial court have the authority, in response to a motion to dismiss a crime or enhancement from an indictment due to a lack of evidence supporting newly enacted elements applicable to that crime or enhancement, to resubmit the crime or enhancement to the grand jury to permit the People to present evidence relevant to those new elements?

This presents a question of the existence of a trial court’s authority, which is a question of law that we review de novo. (People v. Lujan (2012) 211 Cal.App.4th 1499, 1507, 150 Cal.Rptr.3d 727 (Lujan) [inherent authority]; Cheng v. Coastal L.B. Associates, LLC (2021) 69 Cal.App.5th 112, 119, 284 Cal.Rptr.3d 270 [statutory authority].)

I. Background Law

A. Charging crimes, and the ways a defendant may challenge those charges

1. Mechanisms for charging crimes

[2] In California, a person charged with a crime or an enhancement has the right to a preliminary determination of whether there is sufficient evidence—that is, probable or reasonable cause to believe that they committed that crime or enhancement—to prosecute those charges through trial. (Cal. Const., art. I, § 14; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1025-1026, 13 Cal.Rptr.2d 551, 839 P.2d 1059.) Our state Constitution provides two different avenues for this evaluation: (1) indictment after evaluation of the evidence by a grand jury; or (2) the filing of an information after evaluation of the evidence by a "magistrate" at a hearing called a "preliminary examination" (or, more informally, a preliminary hearing). (Cal. Const., art. I, § 14; Pen. Code, § 737.)

[3–5] A grand jury is a pool of persons drawn from the community at large who "weigh[ ] criminal charges." (§§ 888, 905; People v. Garcia (2011) 52 Cal.4th 706, 729, 129 Cal.Rptr.3d 617, 258 P.3d 751 (Garcia I).)⁴ A grand jury proceeding is an ex parte proceeding in which the prosecutor—without the presence of a judge or the defendant (or defense counsel)—presents evidence in support of proposed charges and enhancements and then instructs the jury on the pertinent law. (§ 935.) If a specified number of the grand jurors "decide[s]" that sufficient evidence supports the potential charges and enhancements, then the grand jury returns an indictment which—once the prosecutor files it with the court—becomes the charging document on which the defendant goes to trial. (§§ 888.2, 669, 917, subd. (a), 938, 940, 94...