Asberry v. Superior Court CA5

Filed 4/14/23 Asberry v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

JAREN ASBERRY, F084647 Petitioner, (Super. Ct. No. BF178105A) v.

THE SUPERIOR COURT OF KERN COUNTY, OPINION Respondent;

THE PEOPLE,

Real Party in Interest.

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of prohibition. Chad A. Louie, Judge. Peter Kang, Kern County Public Defender, and Nick Roth, Deputy Public Defender, for Petitioner. No appearance for Respondent. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Real Party in Interest.

* Before Peña, Acting P. J., Smith, J. and Meehan, J.

-ooOoo- Petitioner, Jaren Asberry, asks this court to dismiss enhancement allegations from the information filed against him due to recent legislative changes. Following our review of the petition and the relevant legal authorities, we conclude the enhancement at issue must be vacated, and the matter remanded to allow the prosecution to consider whether to continue the preliminary hearing to present additional evidence relevant to the enhancement, or to proceed on an amended information without the enhancement. PROCEDURAL AND FACTUAL SUMMARY On September 4, 2019, a complaint was filed charging petitioner with second degree robbery (Pen. Code,1 § 212.5, subd. (c), a felony; count 1), and resisting arrest (§ 148, subd. (a)(1), a misdemeanor; count 2). An enhancement to count 1 alleged petitioner committed the robbery for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Further, allegations stated petitioner had a prior strike conviction (§ 667, subds. (c)–(j)), a prior serious felony conviction (§ 667, subd. (a)), and that he had served two prior prison terms (§ 667.5, subd. (b)). A preliminary hearing was held on September 20, 2019, at which time testimony was taken from two employees of the police department. Officer Chuen Tsang testified that on August 24, 2019, he arrived to assist other officers who were attempting to break up a large fight in a parking lot. The victim told Tsang petitioner stole a chain and medallion necklace from his neck. The victim then pointed to petitioner as the person who took the chain and medallion from his neck. Tsang observed petitioner fighting with some people in the parking lot and heard him use a racial slur, and the word “East” which was apparently a reference to a local gang. When Tsang approached petitioner, a medallion on a chain fell out of petitioner’s pocket. While petitioner initially ran away when Tsang tried to detain him, he was eventually taken into custody. Once in custody,