Assembly Bill No. 333’s changes to the elements of gang-related charges apply retroactively to preliminary hearing proceedings. Mendoza sought a writ of mandamus after the superior court denied his Penal Code section 995 motion to dismiss a charge for active participation in a criminal street gang and the gang enhancements attached to multiple counts. He asserted that the evidence presented at the preliminary hearing, while sufficient at the time of the hearing, was now insufficient in light of the changes to Penal Code section 186.22 by AB 333. The Court of Appeal ultimately issued an order directing the respondent to show cause why the petition should not be granted. Held: Petition granted. The People conceded AB 333’s amendments to section 186.22 apply retroactively to the showing necessary to hold Mendoza to answer to the gang-related charges at the preliminary hearing. The People also conceded that the evidence presented at the preliminary hearing was insufficient under the amended law to hold Mendoza to answer. The Court of Appeal agreed with these concessions. However, the parties disagreed on the appropriate remedy. After analyzing Penal Code section 995a, subdivision (b), relevant case law, and the preliminary hearing evidence, the court agreed with the People and concluded the prosecutor may move to reopen the preliminary hearing proceedings to present additional evidence on the amended elements of the gang-related charges or proceed without them. [Editor’s Note: The Court of Appeal noted that no other case has addressed whether new laws that change the elements of an offense or enhancement to a defendant’s benefit apply retroactively to the showing necessary to hold a defendant to answer to the related charge or enhancement.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/F084354.PDF