Arevalo v. Superior Court CA2/6

Filed 5/31/23 Arevalo v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

CHRISTOPHER AREVALO, 2d Crim. No. B324002 (Super. Ct. No. 2017011403) Petitioner, (Ventura County)

v.

THE SUPERIOR COURT OF VENTURA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

Christopher Arevalo petitions for a writ of prohibition challenging the trial court’s denial of his motion to dismiss under Penal Code section 995.1 We shall grant the writ.

All statutory references are to the Penal Code. After we 1

summarily denied the petition, the Supreme Court granted review and transferred the matter back to us with directions to vacate our order and issue a new order directing the superior

Arevalo is charged in a 2019 information with first degree murder with allegations that the crime was gang-related. (§§ 186.22, subd. (b)(1), 187, subd. (a), 189, 190.2, subd. (a)(22).) Following the 2022 enactment of Assembly Bill No. 333 (AB 333), he moved to dismiss the gang enhancement allegations on the ground that the new law applies retroactively to his case, such that the evidence presented at the preliminary hearing is now insufficient to support a finding of probable cause to hold him over for trial on those allegations. (§ 995, subd. (a)(2)(B).) The trial court accepted the prosecution’s concessions that AB 333 applies retroactively to Arevalo’s case, and that under the new law the evidentiary showing at the preliminary hearing is insufficient as to the gang enhancement allegations. The court also acknowledged our Supreme Court’s then-recent holding that AB 333 applies retroactively. (People v. Tran (2022) 13 Cal.5th 1169, 1205-1206 (Tran).) The court nevertheless denied Arevalo’s section 995 motion, agreeing with the prosecution that he is merely entitled to the benefits of the new law at his upcoming trial. The court erred. AB 333 applies retroactively to all criminal cases, such as this one, that were pending when the law went into effect. (Tran, supra, 13 Cal.5th at pp. 1206-1207, citing In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) The new law “‘essentially adds new elements to the substantive offense and enhancements in section 186.22 — for example, by requiring proof that gang members “collectively engage” in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and