Valdez v. Superior Court CA4/2 (2023) · DecisionDepot
Valdez v. Superior Court CA4/2
California Court of Appeal Aug 21, 2023 No. E080205Unpublished
Filed 8/21/23 Valdez v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
PONCILO VALDEZ,
Petitioner, E080205
v. (Super. Ct. No. FSB1203461)
THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. J. David Mazurek,
Judge. Petition Denied.
James M. Crawford, for Petitioner.
Jason Anderson, District Attorney, and Kyle Karnes, Deputy District Attorney, for
Real Party in Interest.
No appearance for Respondent.
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I.
INTRODUCTION
Petitioner Poncilo Valdez and his brother, Albert Valdez, were charged with
committing murder on May 22, 2012, active gang participation, and possession of a 1 firearm by a felon. After the trial court conducted a preliminary hearing in 2014, the
court found sufficient evidence to charge defendant with the offenses and enhancements 2 of murder (Pen. Code, § 187 ; count 4), possession of a firearm by a felon (§ 29800;
count 6), active gang participation (§ 186.22, subd. (a); count 7 (Gang charge)), and gang
enhancements as to counts 4 and 6 (§ 186.22, subd. (b)(1)(C) (Gang enhancements)).
While awaiting trial, in March 2022, defendant filed a motion to dismiss the Gang
charge and Gang enhancements under section 995, based on changes to section 186.22,
amended by Assembly Bill No. 333 (Stats. 2021, ch. 699, § 3, eff. Jan. 1, 2022) (A.B.
333). Applying A.B. 333 retroactively, the trial court concluded that the preliminary
hearing evidence was insufficient to support the Gang charge and Gang enhancements
attaching to counts 4 and 6. The trial court therefore ordered a limited remand to the
magistrate under section 995a, subdivision (b), to conduct a hearing solely on the issues
of whether the predicate offenses qualified under the current version of section 186.22,
1 Albert, Peter Molina, and Adolfo Oropeza, but not defendant, were also charged with a separate murder on March 28, 2012. A single preliminary hearing was held as to both of the murders and all defendants were held to answer for the alleged charges and enhancements. Albert, Molina, and Oropeza are not parties to the instant writ petition brought by defendant. 2 Unless otherwise noted, all statutory references are to the Penal Code.
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and whether the criminal conduct benefited the Gang more than just enhancing its
reputation. After the matter was transferred back to the magistrate, and before the
magistrate conducted a limited hearing on the matter, defendant filed the instant section
999a petition for a writ of mandate/prohibition.
Defendant contends in his writ petition that the Gang charge and Gang
enhancements must be dismissed because section 995a, subdivision (b)(1) is inapplicable.
We agree section 995a, subdivision (b)(1) is inapplicable, but conclude the trial court did
not err in denying defendant’s motion to dismiss and allowing a limited reopening of the
preliminary hearing to allow the prosecution to present additional evidence required to
prove the Gang charge and Gang enhancements under amended section 186.22.
Defendant’s writ petition is therefore denied. On remand, the prosecution may request
reopening the preliminary hearing to prove the new requirements for the Gang charge and
Gang enhancements, in accordance with the requirements of section 186.22, as amended
by A.B. 333. Alternatively, the prosecution may elect to proceed on an amended
information without the substantive Gang charge and Gang enhancement allegations.
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II. 3 FACTS
A. Detective Vasilis’s Testimony
During the preliminary hearing on June 19, 2014, Sheriff’s Detective Vasilis
testified that he was assigned to investigate the homicide of Edward Urena.
1. Dennis Williams’s Interview
On May 24, 2012, Detective Vasilis interviewed Dennis Williams, who was at the
scene of the murder. Williams told Detective Vasilis that a friend of his, Adolfo
Oropeza, owned the property where the homicide occurred. Urena arrived at Oropeza’s
home shortly after 8:00 p.m. When he arrived, two men, defendant and Albert, and a
women were there, plus Oropeza. Shortly after arriving, Urena got into an argument with
defendant. Defendant told Urena to leave because he disrespected Oropeza and his
property. In response, Urena knocked down defendant. Defendant got up and was
holding a semiautomatic handgun in his left hand. Defendant fired the gun four or five
times at Urena from about eight feet away but missed Urena.
Albert grabbed the gun from defendant and said, “[y]ou’re missing him,” and fired
the gun at Urena one time. As Urena approached Albert, Albert fired at Urena again.
Urena fell to the ground. Albert walked up to Urena while he was on the ground and
fired a shot into Urena’s head and a couple more shots into his body.
3 Because this case has not been tried, the facts are taken from the transcript of the preliminary hearing on June 19, 2014.
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Albert, defendant, and the woman then ran to the front of Oropeza’s property and
out to the street. A car pulled up and the three individuals got into the car. The car drove
away.
2. Oropeza’s Interview
Vasilis also interviewed Oropeza, who said that the two men who were involved in
killing Urena were “Grumpy” and “Sinner,” who were brothers and gang members.
Oropeza later revealed that Grumpy was Albert and Sinner was defendant. About four
months before the shooting, Oropeza met Grumpy through a friend and then met Sinner
through Grumpy. Oropeza also knew Urena.
Around 3:00 p.m., Albert came over to Oropeza’s home looking for defendant,
who was not there at the time. Albert waited for defendant. Around 6:00 p.m., defendant
arrived with his girlfriend. Shortly after they arrived, Urena arrived. Urena borrowed
money from Oropeza and left.
Urena later returned after 10:00 p.m. Oropeza told Detective Vasilis that Albert,
defendant, and Urena may have had a falling out because Urena took over selling drugs
in the same apartment complex where defendant and his girlfriend were selling drugs.
Also, Oropeza’s son was growing a marijuana plant and the plant was missing.
Defendant and Albert believed Urena stole the plant.
When Urena returned later that evening, Oropeza, his wife, Albert, defendant, and
three others were there. At that time, Williams and his friend were working on Oropeza’s
car and the others were in a separate area where there was a patio and food. Defendant
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and his girlfriend began walking around the property arguing. Albert walked over to
where Urena was. Oropeza, his wife, and two others also went over there when they
heard the arguing. When Oropeza got there, he saw defendant pointing a handgun at
Urena and yelling at Urena that he had three minutes to get off the property or he was
going to kill him. Urena responded that “I guess I die right here.” From eight feet away,
defendant fired the gun at Urena but missed.
While Oropeza was trying to calm down Urena, Albert, and defendant, Albert said
something to the effect, “F—k this fool.” Albert took the gun from defendant and started
shooting Urena. Albert fired the gun four times, striking Urena in the stomach.
Defendant did not make any effort to stop Albert from shooting Urena. Urena tried to
run, tripped, and fell to the ground. Defendant, his girlfriend, and Albert fled from
Oropeza’s property. They ran out to the street, where someone picked them up. During a
photographic lineup, Oropeza identified Albert as the shooter.
B. Police Officer Olvera’s Testimony
San Bernardino Police Officer Olvera testified that on October 15, 2013, Oropeza
provided him with information regarding the shooting. Oropeza identified defendant in a
photographic lineup and in court during the preliminary hearing. Oropeza told Officer
Olvera that defendant was present during the shooting and was observed holding a
handgun.
During the preliminary hearing, the parties stipulated that Officer Olvera qualified
as a gang expert. Officer Olvera testified that he had training regarding the gang, East
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Side Verdugo (Gang), and had spoken to members of the Gang, as well as others who had
investigated the Gang. The Gang has a common name, signs, and symbols. Oropeza’s
property, where the shooting occurred, is in the Gang’s territory. The Gang’s primary
activities include selling narcotics, vehicle thefts, assault, and battery, including with
firearms and knives. Officer Olvera further testified that Irvin Rodriguez, who is a
member of the Gang, was convicted of assault with a firearm (§ 245, subd. (a)(2)). The
crime was committed on March 27, 2009, and was committed for the benefit of the Gang.
Juan Rodriguez is also a member of the Gang. On January 15, 2011, he committed
assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)).
Officer Olvera testified that he investigated defendant’s gang status. Based on the
information Officer Olvera gathered over a year of investigation, which included reports
regarding the May 22, 2012 homicide of Urena, witness statements regarding the case,
and speaking with family members, neighbors, and others living in the community,
Officer Olvera concluded that defendant was an active participant and member of the
Gang.
Officer Olvera further concluded, based on this information and circumstances,
that Albert was also an active participant and member of the Gang. Albert admitted he is
a member and has several Gang tattoos. Officer Olvera explained that Gang tattoos had
to be earned. Tattoos could be earned by committing crimes and other activities that
benefitted the Gang.
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Based on reading the reports regarding Urena’s homicide, Officer Olvera’s own
investigation of the incident, and speaking with the witnesses and to the officers who
investigated and wrote the reports, Officer Olvera concluded defendant was present with
Albert during the homicide. Officer Olvera also concluded the homicide occurred within
the Gang’s territory. Officer Olvera concluded that, because two Gang members,
defendant and Albert, were present together at the crime scene, they acted in association
with one another under the “umbrella” of the Gang. Officer Olvera also concluded that
Albert’s actions benefitted the Gang based on Urena disrespecting Oropeza and because
the “homicide itself would . . . go to the overall reputation of the gang. It benefits the
gang’s reputation by continuing to instill fear within the community, to instill fear within
the victim’s family and to witnesses involved.”
Officer Olvera further testified the following acts and statements by defendant
were extremely significant in gang culture. Before the shooting incident, defendant told
Urena, “[y]ou’re not wanted here. You disrespected this house.” Also, defendant
pointed a gun at Urena and said he was going to count to three and if Urena had not left,
defendant was going to kill him. Officer Olvera explained that, according to gang
culture, these acts and statements were significant because, if an individual is
disrespected, there must be retaliation, consisting of discipline carried out by the
disrespected gang member to maintain his reputation in the gang and the gang’s
reputation. Retaliation would include assaults, such as stabbings, physical assaults with
hands, fists, and feet, and murder.
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C. Detective Wijnhamer’s Testimony
Sheriff’s Detective Wijnhamer testified that he was assigned to lead the
investigation of the March 28, 2012, homicide of Christopher Martinez. Detective
Wijnhamer interviewed the victim’s girlfriend, S.J., who said she witnessed Martinez’s
murder. While she and Martinez were at her residence, she saw Martinez outside talking
to three men, Albert, Peter Molina, and Oropeza, who is S.J.’s uncle. Oropeza was
yelling about Martinez owing money for narcotics. Martinez responded he would pay
Oropeza at the beginning of the month. S.J. heard three gunshots, and saw Oropeza and
the two others run to Oropeza’s vehicle.
Detective Wijnhamer also interviewed Oropeza about Martinez’s homicide.
Orpeza said Martinez visited him and told him he would pay the money he owed Orpeza
at the beginning of the month. The following night, Gang member, Molina, met with
Oropeza. Oropeza told Molina that Martinez owed money for drugs. Molina said he
wanted to go to Martinez’s residence and make sure he paid Oropeza. Molina and
Oropeza picked up Albert and drove to Martinez’s house. Molina told Martinez he had to
pay the money he owed for drugs by the end of the month. Albert got out of the car and
started fighting with Martinez. While fighting, Albert grabbed his gun and shot Martinez
several times. Oropeza, Albert, and Molina then got in the car and drove away.
D. Detective Ditfurth’s Testimony
Sheriff’s Detective Ditfurth testified he also investigated the murder of Martinez.
Detective Ditfurth testified Albert is an active member of the prison Surenos gang and the
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Gang, East Side Verdugo Meadowbrook Deuces, which falls within the umbrella of the
Surenos and Mexican Mafia. Detective Ditfurth explained that not paying money owed
to a gang is considered disrespecting the gang. Such disrespect, in gang culture, requires
retaliation. Detective Ditfurth concluded that the Surenos and the Gang were known for
their violent acts, which enhanced their reputation and intimidated the community from
speaking out against the gangs, thereby perpetuating their criminal activities.
III.
PROCEDURAL BACKGROUND
Following a preliminary hearing on June 19, 2014, the People filed an information
in which defendant was charged with murder of Urena (§ 187; count 4), possession of a
firearm by a felon (§ 29800; count 6), and Gang charge (§ 186.22, subd. (a); count 7).
Defendant was also charged with the following enhancements: As to count 4, defendant
allegedly personally used a firearm (§ 12022.53, subd. (b)) and he was a principal who
personally used a firearm (§ 12022.53, subds. (b), (e)(1)); as to counts 4 and 6, defendant
committed the offenses for the benefit of, at the direction of, and in association with a
criminal street gang (§ 186.22, subd. (b)(1)(C)); and as to all counts, defendant suffered a
prior conviction for violating Vehicle Code section 10851, and was convicted of another
felony offense committed within five years of release from prison.
While the case was awaiting trial, in March 2022, defendant filed a motion to
dismiss the information under section 995. Defendant brought the motion after the
passage of A.B. 333, which amended section 186.22. Defendant moved to dismiss the
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information on the ground that there was insufficient evidence under amended section
186.22, to support the Gang charge and Gang enhancements. The People opposed the
motion.
On November 9, 2022, the trial court heard defendant’s motion to dismiss. The
court agreed that section 186.22, as amended by A.B. 333, applied retroactively to
defendant’s case. The trial court further concluded that the preliminary hearing evidence
was insufficient to support a finding that the Gang qualified as a criminal street gang
under the amended version of section 186.22. The court therefore ordered a limited
remand to the magistrate under section 995a, subdivision (b), to conduct a hearing solely
on the issues of whether the predicate offenses qualified under amended section 186.22,
and whether defendant’s criminal conduct benefited the Gang more than just enhancing
its reputation. The trial court reasoned that the limited remand was proper and
fundamentally fair because the change in section 186.22 resulted in a minor error of
omission or technical defect which supported allowing the prosecution to reopen the
preliminary hearing to address the changes in the law.
After the matter was transferred to the magistrate and before the magistrate
conducted a limited hearing on the matter, defendant filed the instant petition for a writ of
mandate/prohibition seeking to compel the trial court to (1) vacate its order denying
defendant’s motion to dismiss the Gang charge and Gang enhancements and denying the
limited remand, and (2) compel the trial court to grant the motion to dismiss.
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IV.
APPLICABLE LAW
Defendant contends the trial court should have granted his section 995 motion to
dismiss the Gang charge and Gang enhancements because there was insufficient evidence
presented at the preliminary hearing to support them. We agree.
A. Dismissal of Charges and Allegations under Section 995
If, during a preliminary hearing, “it appears either that no public offense has been
committed or that there is not sufficient cause to believe the defendant guilty of a public
offense, the magistrate shall order the complaint dismissed . . . .” (§ 871.) As used in
section 872, “‘sufficient cause’” is the equivalent of “‘“reasonable and probable cause.”’”
(Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147; Ortega v. Superior Court
(1982) 135 Cal.App.3d 244, 256.)
“Although the prosecution is not put to proof beyond a reasonable doubt in order
to establish reasonable and probable cause before the magistrate, nevertheless the burden
is on the prosecution to produce evidence that there is a reasonable probability, enough to
induce a strong suspicion in the mind of a man of ordinary caution or prudence, that a
crime has been committed, and that defendant is guilty. [Citations.]” (Garabedian v.
Superior Court (1963) 59 Cal.2d 124, 126-127.) The prosecution must produce some
evidence of every essential element of the offense. (Id. at p. 127; Ortega v. Superior
Court, supra, 135 Cal.App.3d at p. 256.)
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A defendant may bring a motion to set aside the information on the ground “[t]hat
the defendant had been committed without reasonable or probable cause.” (§ 995, subd.
(a)(2)(B).) This provision allows the defendant to show that the prosecution has failed to
produce sufficient evidence at the preliminary examination. (Williams v. Superior Court,
supra, 71 Cal.2d at p. 1147.) If the trial court denies a section 995 motion, a defendant
may, subject to time constraints, file a petition for writ of prohibition in the court of
appeal. (§ 999a.)
“‘[I]n proceedings under section 995 it is the magistrate who is the finder of fact;
the superior court has none of the foregoing powers, and sits merely as a reviewing court;
it must draw every legitimate inference in favor of the information, and cannot substitute
its judgment as to the credibility or weight of the evidence for that of the magistrate.
[Citation.] On review . . . the appellate court in effect disregards the ruling of the
superior court and directly reviews the determination of the magistrate holding the
defendant to answer.’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 301.) “A
reviewing court may not substitute its judgment as to the weight of the evidence for that
of the magistrate, and, if there is some evidence to support the information, the court will
not inquire into its sufficiency. [Citations.]” (Rideout v. Superior Court (1967) 67
Cal.2d 471, 474.)
We apply these principles in deciding whether there was sufficient cause under
section 186.22, as amended, to hold defendant to answer the Gang charge (count 7) and
Gang enhancement allegations attaching to counts 4 and 6.
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B. A.B. 333 Amendments to Section 186.22
After the preliminary hearing on June 19, 2014, the Legislature passed A.B. 333,
effective January 1, 2022. A.B. 333 modified the law on Gang charges and
enhancements: “First, it narrowed the definition of a ‘criminal street gang’ to require that
any gang be an ‘ongoing, organized association or group of three or more persons.’