Remand Ordered for Gang Allegations, 186.22, AB 333
On November 28, 2017, Camilo G. was near the driveway of his friend’s house in Bakersfield when he saw a car stop in the roadway. He saw three men exit the car and then multiple gunshots were fired in his direction; one bullet hit him in his right leg. Camilo G. bled profusely from the wound.
Police found bullet holes in the driver’s side of the car in the front of the driveway, in the garage door and the residence. Police found ten to fifteen LC17 .233 shell casings at the scene.
After the incident, police pursued a black Mercedes-Benz that resembled the suspect vehicle and arrested Guadalupe Mendoza, Ruben Mendoza and Jaime Ramos after a brief foot chase. The three were later charged in connection with Camilo G.’s shooting.
A preliminary hearing was held against all three over the course of two days in June 2019. During the hearing, the prosecution presented eleven witnesses and 24 exhibits. There was evidence related to the Vario Rexland Park (“VRP”) criminal street gang, two predicate offenses from 2013 and 2015, as well as the three suspects’ alleged gang affiliations and prior police contacts.
At the conclusion of the preliminary hearing, the judge found probable cause to believe the defendants had committed the offenses and the enhancements charged, which included Penal Code § 186.22(b)(1), as well as the charge of actively participating in a criminal street gang, Penal Code § 186.22(a).
On January 1, 2022, Assembly Bill 333 became effective, changing 186.22’s definitions of “pattern of criminal gang activity” and “criminal street gang.”
Guadalupe Mendoza filed a Penal Code § 995 motion to dismiss the 186.22(a) charge as well as the 186.22(b)(1) enhancement in light of the changes to these statutes brought on by Assembly Bill 333. In his motion, he argued the evidence presented at the preliminary hearing was sufficient to prove the charge and enhancement under the former law, but not the amended law.
More specifically, Mr. Mendoza argued that the 2015 predicate offense presented by the prosecution only involved a single gang member and consequently cannot establish a “pattern of criminal gang activity” as required by AB 333. In addition, the 2013 predicate offense did not fall within the three-year period of the current offense, so it also was insufficient to support the gang enhancement, which requires a pattern of criminal gang activity within three years.
Mr. Mendoza also argued that there was no evidence as to how either of the predicate offenses benefited the gang and no evidence, other than reputational, was presented to prove the current offense benefitted the gang as required by the amended land.
The judge, Chad A. Louie, denied the 995 motion. Mr. Mendoza then filed a petition for a writ of mandamus to the Fifth Appellate District in Fresno, which affirmed the trial court.
Mr. Mendoza then appealed this ruling to the California Supreme Court, which directed the Fifth Appellate District to reverse its order denying Mr. Mendoza’s petition for a writ of mandamus and issue an order directing the trial court to hold a hearing to show cause why the relief sought in the petition should not be granted.
The District Attorney then filed a brief conceding that Assembly Bill 333 should apply retroactively to the gang enhancements and the substantive gang participation charge alleged in the case. The prosecutor then argued that in light of the changes to the law, they should be allowed to conduct further preliminary hearing proceedings on the substantive gang offense and the gang-related enhancements.
The trial court judge then ordered that the preliminary hearing should be reinstated to allow the prosecution to present further evidence. Mr. Mendoza appealed this ruling, filing a Penal Code § 999a petition for writ of mandamus seeking review of the trial court’s denying his 995 motion. The Fifth Appellate District denied this writ, affirming the trial court’s ruling to allow the prosecution to reconvene the preliminary hearing to present additional evidence.
We present this summary to show that just because the gang allegation evidence may have been insufficient before the passage of Assembly Bill 333, this does not necessarily mean that the gang participation count and the gang enhancement allegation are dismissed. Instead, as this case showed, the judge permitted the prosecution to reconvene the preliminary hearing to present more evidence to address the new legal standard.
For more information about Assembly Bill 333 and gang allegations, please click on the following articles:
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