Rodas-Gramajo v. Superior Court of Marin Cnty.
| Citation | 92 Cal.App.5th 656,309 Cal.Rptr.3d 652 |
| Docket Number | A166375 |
| Decision Date | 15 June 2023 |
| Parties | Brian RODAS-GRAMAJO, Petitioner, v. The SUPERIOR COURT OF MARIN COUNTY, Respondent; The People, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
Matthew A. Siroka for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin, Charlotte Woodfork, Eric D. Share and Karen Z. Bovarnick, Deputy Attorneys General, for Real Party in Interest.
Following a preliminary hearing, petitioner Brian Rodas-Gramajo was charged with various crimes alleged to have been committed "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" — a gang enhancement triggering increased punishment. ( Pen. Code, § 186.22, subd. (b)(1) ; undesignated statutory references are to this code.) While he awaited trial, the Legislature enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), altering the requirements for imposing the enhancement. As relevant here, the legislation altered the proof necessary to establish the existence of a criminal street gang. ( § 186.22, subd. (e)(1), Stats. 2021, ch. 699, § 4.)
Rodas-Gramajo thereafter moved to dismiss the gang allegation pursuant to section 995, arguing the People failed to present sufficient evidence establishing the existence of a criminal street gang under amended section 186.22. The trial court denied the motion. Instead, consistent with section 995a, it reopened the preliminary hearing to allow the People to proffer additional evidence to satisfy the new gang enhancement elements. Rodas-Gramajo sought a writ of mandate to compel the court to set aside the information; we summarily denied the petition.
The California Supreme Court granted Rodas-Gramajo's petition for review and remanded the matter to this court with directions to vacate our decision and to issue an order to show cause why he is not entitled to dismissal of the gang enhancement allegations. (Rodas-Gramajo v. Superior Court , review granted Jan. 25, 2023, S277862.) In addition, we requested supplemental briefing by both parties on, among other issues, whether section 995 is the appropriate vehicle to challenge an information when the Legislature subsequently changes the elements of a charge or enhancement. We conclude Rodas-Gramajo properly used a section 995 motion to dismiss his information, but the missing evidence supporting the amended elements constituted "minor errors of omission" for which section 995a remand was appropriate. Accordingly, we deny the writ.
In October 2020, the victim was entering his residence in San Rafael when three people, including Rodas-Gramajo, confronted him. One of the men, Jesus Mendez-Munoz, lowered his shirt collar to reveal an "X8" neck tattoo, affiliated with the 18th Street gang. Rodas-Gramajo asked the victim to "represent himself"— that is, asked whether he was a gang member, a rival gang member, or if he wanted to be a gang member — and called him a "snitch." The three men began to beat and kick the victim, bloodying his face. Although the victim was not a gang member, he wore blue bandana shoelaces and a Raiders football team lanyard, both of which were associated with the 18th Street gang.
At the preliminary hearing, a police officer testified as a criminal street gang expert. He described the 18th Street gang — also known as Canal Street Gangsters or 18th Street — as a subset of the Sureño street gang operating in San Rafael. The gang has thousands of members and is associated with the number 18 in any form or symbol, such as "XV3" or "XVIII," as well as the colors blue, black, and attire affiliated with the Raiders. The 18th Street gang engages in criminal activity, such as assault with deadly weapons, criminal threats, selling drugs, and vandalism. The officer testified that assaulting a person benefits the gang by creating a reputation for violence. According to the officer, wearing gang attire when not a member of a gang is a sign of disrespect that actual gang members find problematic. Assaults build the gang's credibility and respect in the community. Violence is also used to deter people from reporting crimes.
The officer opined Rodas-Gramajo is a member of the 18th Street gang. Indeed, two months after the October 2020 attack, Rodas-Gramajo registered with the police department as an 18th Street gang member, noting he had been a member since he was 13 years old.2 (§ 186.30.) A different officer also identified two predicate offenses committed by known 18th Street gang members — a 2017 assault committed by Rodas-Gramajo and Dixon Hernandez-Gonzalez, and a July 5, 2019, assault committed by Ashley Myers. According to the officer, the victim in the 2017 assault was a known member of the Norteño street gang, a Sureño rival. After the preliminary hearing, Rodas-Gramajo was charged with felony assault by means likely to cause great bodily injury. (§ 245, subd. (a)(4).) The complaint further alleged he committed the offense with the specific intent to promote, further, and assist in criminal conduct by members of a criminal street gang and for the benefit of the 18th Street gang. ( § 186.22.)
Assembly Bill 333 became effective on January 1, 2022, while Rodas-Gramajo awaited trial. Under former section 186.22, the existence of a "criminal street gang" was established by having (1) an ongoing association of three or more persons with a common name, identifying symbol or sign; (2) one of the group's primary activities be committing one or more statutorily enumerated criminal offenses; and (3) the members individually or collectively engage or engaged in a pattern of criminal gang activity. (Former § 186.22, subd. (f).) Demonstrating a "pattern of criminal gang activity" required establishing the commission of two or more enumerated offenses, "provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." (Former § 186.22, subd. (e).)
As relevant here, Assembly Bill 333 amended the definition of a "criminal street gang." Now, proof of an "ongoing, organized association or group of three or more persons, whether formal or informal," whose members "collectively engage in, or have engaged in, a pattern of criminal gang activity" is required. ( § 186.22, subd. (f), Stats. 2021, ch. 699, § 4, italics added.) Moreover, to establish a "pattern of criminal gang activity," there now must be proof of two or more enumerated offenses that "occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed ." ( § 186.22, subd. (e)(1), italics added.) The predicate offenses must have been "committed on separate occasions or by two or more members ," rather than persons. (Ibid. , italics added.) Finally, the gang must derive more than a reputational benefit from both the predicate and charged offenses. (Ibid .) Examples of an acceptable benefit include "financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." ( § 186.22, subd. (g), Stats. 2021, ch. 699, § 4.)
Based on Assembly Bill 333, Rodas-Gramajo moved to set aside the information pursuant to section 995. He argued the preliminary hearing evidence was insufficient to prove the alleged criminal street gang collectively engaged in a pattern of criminal gang activity. In addition, he argued there was no evidence the predicate offenses for establishing the pattern of criminal gang activity were committed by two or more gang members or that the benefit from those offenses was more than reputational. Finally, there was no evidence, Rodas-Gramajo argued, the charged offense benefitted the gang in a manner that was more than reputational.
The People did not dispute there was insufficient evidence to satisfy the gang enhancement elements as amended by Assembly Bill 333 and instead requested the case be remanded to the magistrate to address the deficiencies under section 995a. The additional anticipated evidence consisted of requesting the magistrate take judicial notice of a file previously used to prove a predicate offense, testimony by an officer about the facts of that offense and conveying the perpetrator's admission to being a gang member, and testimony from the People's prior expert that the predicate and charged offense benefitted more than the gang's reputation. The prosecutor estimated presenting this additional information would take approximately one hour.
Based upon the prosecution's proffer, the trial court concluded the evidentiary omissions were minor and ordered limited remand under section 995a; it denied the motion to set aside the information.
Rodas-Gramajo contends the trial court abused its discretion by reopening the preliminary hearing to permit the People to address the amended gang enhancement elements — amendments that retroactively apply to him since his case is not yet final — because the defects in the evidence were not minor errors of omission under section 995a. ( People v. Lopez (2021) 73 Cal.App.5th 327, 344, 288 Cal.Rptr.3d 463.) We disagree.
Under section 995, a court must dismiss an information if a defendant has been committed without reasonable or probable cause to believe they are guilty of the charged crime. (§ 995, subd. (a)(2)(B); People v. Mower (2002) 28 Cal.4th 457, 473, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) A section 995 motion reviews the sufficiency of the information based on the record before a...
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