Filed 4/13/ 23 Garcia

- Fuentes v. Superior Court CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

WILLIAM GARCIA

- FUENTES, Petitioner,

v. SUPERIOR COURT OF MONTEREY COUNTY, Respondent; THE PEOPLE, Real Party in Interest. H050346 (Monterey County Super. Ct. No. 21CR009067)

DAVID IRETA REYES, Petitioner,

v. SUPERIOR COURT OF MONTEREY COUNTY, Respondent; THE PEOPLE, Real Party in Interest. H050366 (Monterey County Super. Ct. No. 21CR009066)

Following a double murder in 2021 , p etitioner s William Garcia

- Fuentes and David Ireta Reyes w ere held to answer on 10 felony c harges , with gang and weapons
enhancements

. After the trial court denied petitioners’ mo tions to dismiss pursuant to Penal Code 1
section 995, petitioner s filed petition s for writ of prohibition in this court

. Petitioners

1 Unspecified statutory references are to the Penal Code.2

assert the prosecution failed to prove the necessary elements of a criminal street gang, because they failed to establish “a pattern of criminal activity” under section 186.22 as modified by Assembly Bill No. 333 (2021

- 2022 Reg. Sess.). Petitioner s ask us to order the trial court to vacate its ruling on the motion s and enter a new order setting aside the gang charges and gang enhancements

. We issued an order to show cause why the relief petitioner s seek should not be granted. The People filed return s conceding that petitioner s are entitled to relief. We accept the concession and will issue writ s of prohibition restraining respondent court from taking any further action against petitioners based up on the gang charges and gang enhancements in the information and directing respondent court to vacate its order denying petitioners’ section 995 motions to set aside the information and enter a new order granting the motion, in part, with respect to the ga ng charges and gang
enhancements

. I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History On February 24, 2022, a third amended complaint was filed charging petitioner s with two counts of murder (§ 187; count s 1 & 2 ), with the following enhancements: principal’s use of a firearm (§ 12022.53 , subd. (b) ), discharge of firearm in a gang case (§ 12022.53 , subd. (c) ) , use of a firearm ( § 12022.53 , subds. (d) , (e)(1)), street terrorism ( § 186.22 , subd. (b)(5) ), and the following special circum stances: gang murder ( § 190.2 , subd. (a)(22) ) , and multiple murder (§ 190.2 , subd. (a)(3) ) ; count 1 also included an
enhancement for murder to prevent testimony (§ 190.2 , subd. (a)(10) ) ; one count of criminal street gang conspiracy (§ 182.5 ; count 3 ) , enhanced by principal’s use of a firearm (§ 12022.53 , subd. (b)), discharge of firearm in a gang case (§ 12022.53 , subd. (c)), use of a firearm (§ 12022.53 , subds. (d) , (e)(1)), one count of shooting at an occupied motor vehicle (§ 246; count 4) , enhance d by p rincipal’s u se of a f irearm (§ 12022.53 , subds. (d) , (e)(1) ) and street terrorism (§ 186.22 , subd. (b)(1) , (4) ) ; four3

count s of assault with a semi

- automatic firearm (§ 245 , subd. (b) ; counts 5

- 8 ) , enhance d by infliction of great bodily injury (§ 12022.7 , subd. (a) ), and street terrorism (§ 182,
subd. ( a ) (1) ; count 9); and one count of conspiracy to commit murder (§ 186.22 , subd. (a ); count 10 ), enhanced by street terrorism (§ 186.22, subd. (b)(1) , (5)).
A preliminary hearing was conducted on Febr uary 24 , 2022, and February 28,
2022. T he court held petitioners to answer on all c harges and enhancements. An information was filed containing the same allegations as set forth in the third amended complaint.
Petitioners each filed motions to dismiss the information pursuant to section 995.
The trial court denied the motions in August 20 22

. In September 2022, petitioners filed timely petitions for writ s of prohibition in this

court. On November 1 7 , 2022, this court issued a stay of further proceedings in the trial court and requested opposition from the People

. The People file d opposition to the petitions. On December 22, 2022, this court issued an order to show cause why petitioners should not be granted the relief they request. The People filed a return conceding that petitioners are entitled to relief.
B. Evidence presented at the preliminary examination On October 24, 2021, at around 1:00 a.m., a group of eight friends were attending
an outdoor concert in the C ity of Gonz ale s

. The group came in two separate cars , one containing six people and the other containing two. An eyewitness identified as “MV

- l”
stated that he knew Reyes and Garcia

- Fuentes and had socialized with them prior to the shooting. MV

- l said that Reyes was known by his gang moniker “Bambi,” and
Garcia

- Fuentes was known as “Willy.”
MV

- 1 sa w Bambi and Willy approach the car containing six people and start asking “where ’ s Fabian?” a nd “who ’ s Fabian?” While looking for Fabian, one of them said, “that’s him” or “that’s th at fool there!” Immediately after they identified Fabian,4

Bambi pulled out a gun, took a small step back and started firing into the car , killing Fabian Ortega and A raceli Verar and injuring two others

. MV

- 1 said that Fabian Ortega was associated with the Watsonville City Hall subset of the Norteño criminal street ga ng

. MV

- l described Willy as acting like the “ big homey ” during the shooting and Bambi as

“ the little homey. ” According to MV

- 1, the big hom ey was instigating the shooting by pushing the little homey into action

. Another eyewitness identified as “ MS

- l ” stated that before the shooting, he saw Reyes and Garcia

- Fuentes talking about Fabian being a “ snitch ” and being “ no good, ” saying things like “ this fool is no good, ” and “ fuck that fool, ” and “ he ’ s a piece of shit .”
MS

- 1 said the two seemed to be working together, and when they found Fabian, Reyes
shot into the car about five times. Detective Jesse Pinon was qualified as an expert on Norteño criminal street gangs in Monterey County

. Detective Pinon testified that the Norteño gang in Monterey County has approximately 3 , 000 to 4 , 000 members and t he Watsonville City Hall gang is

a Norteño subset gang using the same signs and symbols as the larger gang

. Detective Pinon said that members committing crimes could help the g ang by making money and creating fear in others. Regarding the predicate crimes require d under section 186.22 , Det ective Pinon
testified about a robbery that Hector Camberos and Jose Amezcua committed in 2020,
and that both men were active Norteño gang members . Detective Pinon also testified about a residential burglary that two other active Norteño gang members, Art Marquez and Jose Martinez, committed in 2018.
Detective Pinon testified about the crimes committed in this case. He said th at the

statement “ this fool is no good, ” “ he ’ s a snitch, ” “ he ’ s a piece of shit ” used by Reyes and
Garcia

- Fuentes when referring to Fabian showed that they thought Fabian was “ no good, ” and that “ he is a snitch .” Detective Pinon testified that in his opinion, Reyes and
Garcia

- Fuentes killed Fabian because he had snitched on the Norteño gang.5 II. DISCUSSION
A. Standard of Review At a preliminary examination , a magistrate determines whether there is “sufficient
cause” to believe a defendant is guilty of all offenses and enhancements charged. (§ 871;

see § 872, subd. (a).) This is a threshold determination for allowing the prosecution to proceed to trial against the defendant on those allegations.
The mechanism for challenging a magistrate ’ s sufficient cause determination is a
motion to set aside or dismiss under section 995. Denial of a section 995 motion is most appropriately challenged by a petition for writ of prohibition. (§ 999a; see Hudson v

. Superior Court (2017) 7 Cal.App.5th 999, 1006.) Because “following the denial of a section 995 motion, we review the preliminary hearing magistrate’s determination directly and disregard the judge’s section 995 ruling,”
we must determine whether the evidence submitted at the preliminary hearing was sufficient to hold petitioner to answer on the gang enhancement allegations under
section 186.22 as amended by Assembly Bill No. 333. (See People v

. Ramirez (2016) 244 Cal.App.4th 800, 813.)
B. Section 186

. 22 following Assembly Bill No

. 333 “Assembly Bill No. 333

. . . amended section 186.22 by modifying the definitions of ‘pattern of criminal activity’ and ‘criminal street gang,’ and it clarified what is required to show an offense ‘benefit[s], promote[s], further[s], or assist[s]’ a criminal street gang.” ( People v

. Perez (2022) 78 Cal.App.5th 192 , 206.) Section 186.22 now

“ ‘requires proof of the following additional requirements with respect to predicate
offenses: (1) the offenses must have “commonly b enefited a criminal street gang” where
the “common benefit

. . . is more than reputational”; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a6

predicate offense.’ ” ( Perez , supra , at p. 206.) “With respect to common benefit, the new legislation explains: ‘[T]o benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are mo re than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or
informant.’ ” ( People v

. Lopez (202 1) 73 Cal.App.5th 327, 345.) At the preliminary examination in the present case, while the gang expert testified about predicate robbery and burglary offenses committed by known Norteño gang members, he did not opine how th ose predicate offense s benefitted the Norteño street gang in a manner that was “more than reputational

. ” (§ 186.22, subd. (g)

. ) It appears from the record that the trial court inferred the benefit was more than reputational without any specific evidence to support that inference.
We f ind the People’s concession in this case is well taken and agree that the proof
submitted at the preliminary examination was insufficient to meet the pattern of criminal activity requirement of section 186.2 2 as amended by Assembly Bill No. 333. Therefore,

t he portion of the order holding petitioner s to answer on the gang charges and gang enhancement allegations must be vacated.
III. DISPOSITION
H050346 Let a peremptory writ of prohibition issue restraining respondent court from taking any fur ther action against petitioner William Garcia

- Fuentes based upon the gang charges and gang enhancements in the information in the above

- entitled action and directing respondent court to vacate its August 25, 2022 order denying petitioner’s Penal Code
secti on 995 motion to set aside the information and enter a new order granting the motion, in part, with respect to the gang charges and gang enhancements and dismissing those gang charges and gang enhancements in the information. This opinion is made7

final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Upon issuance of the remittitur, the temporary stay is vacated.
H050366
Let a peremptory writ of prohibition issue restraining respondent court from taking any further action against petitioner David Ireta Reyes based upon the gang charges and gang enhancements in the information in the above

- entitled action and directing respondent court to vacate its August 25, 2022 order denying petitioner’s Penal Code section 995 motion to set aside the information and enter a new order granting the motion, in part, with respect to the gang charges and gang enhancements and dismissing those gang charges and gang enhancements in the information. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Upon issuance of the remittitur, the temporary stay is vacated._____________ ______________________ Wilson, J.

WE CONCUR:

______________________________________

Bamattre

- Manoukian , Acting P.J.

______________________________________

Grover, J.

Garcia

- Fuentes v. Superior Court H050346
Reyes v. Superior Court H050366