People v. Osorio CA6

Filed 11/29/23 P. v. Osorio CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050582 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2106199)

v.

EDUARDO DANIEL OSORIO,

Defendant and Appellant. Defendant Eduardo Daniel Osorio appeals from the judgment imposed after his no contest plea. The Attorney General concedes that the trial court erred in imposing a gang registration requirement under Penal Code section 186.30.1 We order the gang registration requirement stricken, and otherwise affirm the judgment. I. BACKGROUND A. Procedural History The Santa Clara County District Attorney charged Osorio2 in an indictment with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 1); dissuading or attempting to dissuade a witness (§ 136.1, subd. (c)(1); count 2); using force upon and threatening force and violence against a witness (§ 140, subd. (a); count 3); and participating in a criminal street gang (§ 186.22, subd. (a); count 4). As to counts 1 and 3, the indictment alleged a criminal street gang special allegation under section

1 Undesignated statutory references are to the Penal Code. 2 Osorio was one of 31 defendants charged in this indictment.

186.22, subdivision (b)(1)(A), and as to count 2, the indictment alleged a gang special allegation under section 186.22, subdivision (b)(4)(A). On August 2, 2021, Osorio filed a motion under section 995 to dismiss count 4 of the indictment along with the gang special allegations in counts 1, 2, and 3. The trial court denied the motion on December 3, 2021. Assembly Bill No. 333 (2021-2022 Reg. Sess.; Stats. 2021, ch. 699), which amended section 186.22, became effective on January 1, 2022. On March 1, 2022, Osorio filed a renewed section 995 motion, once again challenging the gang special allegations, as well as the charge of participating in a criminal street gang (count 4). The district attorney opposed the motion. The court granted Osorio’s renewed section 995 motion, finding under amended section 186.22, subdivision (e)(1) there was insufficient evidence that the common benefit of the predicate crimes was more than reputational, and it dismissed count 4 and the gang special allegations accompanying counts 1, 2, and 3. Osorio then entered no- contest pleas, without a plea agreement, to the remaining counts. Osorio filed a sentencing memorandum arguing that the court could not impose a gang registration requirement under section 186.30 because of the findings it made when it granted the motion to dismiss count 4 and the gang special allegations. The court rejected this argument, and determined that the gang registration requirement applied to Osorio because his offense conduct in this case was “gang related” within the meaning of section 186.30, subdivision (b)(3). The court sentenced Osorio to an aggregate term of five years in state prison. The court also ordered him to register as a gang member in accordance with the requirements of section 186.30. Osorio filed a timely notice of appeal.