A motion to set aside the information (Pen. Code, § 995) was the appropriate vehicle to challenge a gang enhancement allegation where the statute was amended by Assembly Bill No. 333 after the preliminary hearing. Petitioner was charged with various crimes and a gang enhancement triggering increased punishment (Pen. Code, § 186.22, subd. (b)(1)). While he awaited trial, AB 333 altered the requirements for imposing the gang enhancement. Petitioner filed a section 995 motion to dismiss the gang allegation, arguing the People failed to present sufficient evidence of the existence of a criminal street gang under amended section 186.22. The trial court denied the motion and, consistent with section 995a, reopened the preliminary hearing to allow the People to proffer additional evidence. Petitioner sought a writ of mandate to compel the trial court to set aside the information. Held: Petition denied. 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. A section 995 motion can be used to challenge an information when the Legislature subsequently changes the elements of a charge or enhancement. Here, AB 333 constituted a substantial change in the law and rendered the evidence presented at the preliminary hearing insufficient to support the gang enhancement charges. Thus, petitioner properly challenged his information pursuant to section 995.
The trial court properly allowed the prosecution to reopen the preliminary hearing under section 995a and present additional evidence because the defects in the evidence were minor errors of omission. Section 995a confers the court with discretion to reopen a preliminary hearing without dismissing the action if certain prerequisites are met. Specifically, a court may, upon the prosecution’s motion, order a remand for further proceedings to correct “minor errors of omission, ambiguity, or technical defect” in the commitment. (§ 995a, subd. (b)(1).) Here, the People’s failure to present evidence of the gang enhancement that was not required by former section 186.22 at the time of the preliminary hearing constituted an error of omission. These omissions were minor, meaning “comparatively unimportant,” relative to the balance of the already admitted gang-related evidence. Further, the record supported the trial court’s finding that the errors could be corrected expeditiously without substantially rehearing the testimony. The trial court did not abuse its discretion in ordering further proceedings. [Editor’s Notes: (1) The court declined to hold that a section 995a remand is appropriate whenever there is a change in the law between the preliminary hearing and the jury trial, concluding that whether an omission is minor must be determined on a case by case basis. (2) Presiding Justice Tucher concurred in the result, but “would not analyze petitioner’s motion pursuant to the procedures and constraints of sections 995 and 995a.” In Justice Tucher’s view, “the motion is a nonstatutory motion to dismiss pursuant to Estrada, and the taking of supplemental evidence is proper without regard to whether that evidence is ‘minor,’ as that term is used in section 995a(b)(1), or the other requirements of section 995a are met.”]