Filed 1/25/2024

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CARLOS CHAVEZ,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 B332361

 (Los Angeles County

 Super. Ct. No. BA452909)

ORIGINAL PROCEEDINGS in mandate. Lisa B. Lench, 

Judge. Petition denied.

Law Office of Tracy Casadio and Tracy Casadio for 

Petitioner.
2

No appearance for Respondent. 

George Gascón, District Attorney, Grace Shin, Deputy 

District Attorney, for Real Party in Interest.

* * * * * *

A grand jury returned an indictment that, among other 

things, charges a defendant with four violent felonies, and with 

committing them “for the benefit of, at the direction of, or in 

association with” a criminal street gang; the latter allegation is 

known colloquially as the gang enhancement. (Pen. Code, § 

186.22, subd. (b)(1)(C).)1 It is undisputed that the evidence 

before the grand jury established probable cause to believe the 

gang enhancement was true as the enhancement was defined at 

that time. However, our Legislature subsequently amended the 

definition of the gang enhancement—in Assembly Bill No. 333 

(2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, § 4) (Assem. Bill No.

333)—to add new elements. The defendant is now awaiting trial, 

and has moved to dismiss the gang enhancement allegations

because the People had not presented evidence to the grand jury 

to support the new elements of the enhancement (which did not 

exist at the time of the initial grand jury proceedings). Is 

dismissal required? It is not. Instead, we hold that a trial court 

has the inherent authority to reserve ruling on a motion to 

dismiss, to resubmit gang allegations to the grand jury for the 

People to present evidence bearing on the new elements, and to 

thereafter rule on the motion by reviewing the sufficiency of that 

new evidence. Because the trial court here—in substance, if not 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

form—followed this procedure, we deny the defendant’s petition 

for a writ of mandate.

FACTS AND PROCEDURAL BACKGROUND

On December 22, 2015, members of the Valerio Street gang 

drove to Saticoy Street in Van Nuys, California. Saticoy Street is 

within the gang’s territory. Now on foot, three Valerio Street

gang members accosted four men perceived to be members of a 

rival gang, shouted out their gang’s name, and the Valerio Street 

members armed with guns then opened fire. One of the victims 

died; three others survived.

On May 12, 2017, a grand jury returned a 20-count 

indictment against nine defendants. With respect to the Saticoy 

Street shooting, the indictment charges Carlos Chavez 

(defendant) and five others with one count of murder (§ 187) and 

three counts of attempted premeditated murder (§§ 664, subd. 

(a), 187). The indictment further alleges that defendant 

committed those crimes “for the benefit of, at the direction of, or 

in association with a criminal street gang with the specific intent 

to promote, further or assist in criminal conduct by gang 

members” pursuant to the gang enhancement statute (§ 186.22, 

subd. (b)(1)(C)).2

On January 1, 2022, Assem. Bill No. 333 became effective. 

Assem. Bill No. 333 amended the gang enhancement statute to 

“‘essentially add[] new elements.’” (People v. Tran (2022) 13 

Cal.5th 1169, 1207 (Tran).) Prior to the enactment of Assem. Bill 

2 The indictment also charges defendant with being a felon 

in possession of a firearm on a different date and also alleges 

firearm enhancements in conjunction with the homicide offenses, 

but that charge and those enhancements are not at issue in this 

petition.
4

No. 333, the gang enhancement statute defined a “criminal street 

gang” as an “ongoing organization” or “group of three or more 

persons” (1) that “ha[s] as one of its primary activities the 

commission of one or more [statutorily enumerated] criminal 

acts”; (2) that “ha[s] a common name or common identifying sign 

or symbol”; and (3) “whose members individually or collectively 

engage in, or have engaged in, a pattern of criminal gang 

activity.” (Former § 186.22, subd. (f), Stats. 2017, ch. 561, § 178.) 

The pre-Assem. Bill No. 333 version went on to define a “pattern 

of criminal gang activity” as requiring proof of “two or more” 

convictions for statutorily enumerated offenses as long as they 

were “committed on separate occasions” and all committed within 

three years of each other. (Id., subd. (e).) Assem. Bill No. 333 

amended the gang enhancement statute to require, for the first 

time and as pertinent here, proof that the offenses making up the 

“pattern of criminal gang activity” (1) were committed 

“collectively” (rather than “individually or collectively”) (§ 186.22, 

subd. (f)); (2) “commonly benefitted [the] criminal street gang,” 

and requiring that the “common benefit [be] more than 

reputational” (id., subds. (e)(1) & (g)); and (3) were committed 

within three years of each other and within three years of the 

charged crime, and can no longer include the charged crime (id., 

subds. (e)(1) & (e)(2)). (Accord, Mendoza v. Superior Court (2023) 

91 Cal.App.5th 42, 51 (Mendoza) [enumerating these changes].)

On August 31, 2023, defendant moved to dismiss the gang 

enhancement allegations from the indictment. Specifically, 

defendant argued that Assem. Bill No. 333 applied retroactively 

to his still-pending case and that the evidence presented to the 

grand jury did not establish probable cause to believe (1) that the 

prior offenses constituted a “pattern of criminal gang activity” 
5

that were committed collectively to benefit the gang, or (2) that 

any benefit to the gang was more than reputational.

In their opposition to defendant’s motion and at the 

ensuing hearing, the People conceded that Assem. Bill No. 333’s 

new requirements applied retroactively to the gang 

enhancements alleged against defendant, and that the evidence 

presented to the grand jury did not establish probable cause to 

believe that the prior offenses were committed collectively by 

Valerio Street gang members or that their benefit to the gang 

was more than reputational. However, the People sought the 

trial court’s permission to present additional evidence to the 

grand jury, representing to the trial court that the People could 

“meet the requirements of the new[ly amended] gang statute.”

The trial court ruled that it would “give the People the 

opportunity present [evidence relevant to the newly added 

elements of the gang enhancement statute] to the grand jury if 

they choose to do so” and “den[ied defendant’s] motion [to 

dismiss] on that basis.” Because the court’s order contemplated 

the presentation of this new evidence to the grand jury, we infer 

that the court’s denial of the motion was without prejudice—and 

hence equivalent to reserving a ruling on that motion pending 

resubmission to the grand jury.

Defendant petitioned this court for a writ of mandate, 

arguing that the trial court lacked the authority to reopen the 

grand jury proceedings to permit the People to present evidence 

regarding the elements Assem. Bill No. 333 added to the gang 

enhancement statute, and that he was entitled to have the gang 

enhancement allegations dismissed entirely. We called for a

response, and the People submitted a two-page letter indicating 

they “have not been able to find any cases” directly on point and, 
6

on that basis (and hence without any attempt to argue by analogy 

or engage in further legal research), did “not oppose” defendant’s

petition. However, the People did not withdraw their earlier 

position that they have evidence to present to the grand jury 

regarding the newly added elements of the gang enhancement

statute. We reject the People’s concession to the legal merit of 

the writ petition because that concession is wrong—as we explain 

below.3

DISCUSSION

This writ petition presents the following question: Does a 

trial court have the authority, in response to a motion to dismiss 

a crime or enhancement from an indictment due to a lack of 

evidence supporting newly enacted elements applicable to that 

crime or enhancement, to resubmit the crime or enhancement to

the grand jury to permit the People to present evidence relevant 

to those new elements? 

This presents a question of the existence of a trial court’s 

authority, which is a question of law that we review de novo. 

(People v. Lujan (2012) 211 Cal.App.4th 1499, 1507 (Lujan)

[inherent authority]; Cheng v. Coastal L.B. Associates, LLC 

(2021) 69 Cal.App.5th 112, 119 [statutory authority].)

3 Even if the People had further retreated from their position 

taken before the trial court and indicated a desire not to present 

evidence to the grand jury, we would still retain jurisdiction to 

resolve this writ petition because it presents a question of first 

impression that is of general importance to the bench and bar 

(Amie v. Superior Court (1979) 99 Cal.App.3d 421, 424) and is 

likely to recur (Hiona v. Superior Court (2020) 48 Cal.App.5th 

866, 871).
7

I. Background Law

A. Charging crimes, and the ways a defendant may 

challenge those charges

1. Mechanisms for charging crimes

In California, a person charged with a crime or an 

enhancement has the right to a preliminary determination of 

whether there is sufficient evidence—that is, probable or 

reasonable cause to believe that they committed that crime or 

enhancement—to prosecute those charges through trial. (Cal. 

Const., art. I, § 14; Cummiskey v. Superior Court (1992) 3 Cal.4th 

1018, 1025-1026.) Our state Constitution provides two different 

avenues for this evaluation: (1) indictment after evaluation of 

the evidence by a grand jury; or (2) the filing of an information 

after evaluation of the evidence by a “magistrate” at a hearing 

called a “preliminary examination” (or, more informally, a 

preliminary hearing). (Cal. Const., art. I, § 14; Pen. Code, § 737.)

A grand jury is a pool of persons drawn from the 

community at large who “weigh[] criminal charges.” (§§ 888, 905; 

People v. Garcia (2011) 52 Cal.4th 706, 729 (Garcia I).)4 A grand 

jury proceeding is an ex parte proceeding in which the 

prosecutor—without the presence of a judge or the defendant (or 

defense counsel)—presents evidence in support of proposed

4 Grand juries in California have two other functions aside 

from weighing criminal charges—namely, (1) “evaluating 

misconduct claims against public officials and deciding whether 

to formally seek their removal from office,” and (2) “acting as the 

public’s ‘watchdog’ by investigating and reporting upon local 

government affairs.” (Garcia I, supra, 52 Cal.4th at p. 729; §§ 

922, 919-921, 925 et seq.; McClatchy Newspapers v. Superior 

Court (1988) 44 Cal.3d 1162, 1170 (McClatchy); Goldstein v. 

Superior Court (2008) 45 Cal.4th 218, 226 (Goldstein).)
8

charges and enhancements and then instructs the jury on the 

pertinent law. (§ 935.) If a specified number of the grand jurors 

“decide[s]” that sufficient evidence supports the potential charges 

and enhancements, then the grand jury returns an indictment

which—once the prosecutor files it with the court—becomes the 

charging document on which the defendant goes to trial. (§§ 

888.2, 669, 917, subd. (a), 938, 940, 944; Garica I, at p. 729; 

People v. Brown (1999) 75 Cal.App.4th 916, 932.) 

A preliminary hearing is an adversarial proceeding before a 

judge and with the defendant (and defense counsel) present. (See 

Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1076.) When 

proceeding by way of a preliminary hearing, the prosecutor files a 

criminal complaint alleging certain crimes and enhancements, 

the prosecutor presents evidence in support of the complaint’s 

allegations at the preliminary hearing, the defendant may 

challenge that evidence, and the trial court—who is called a 

“magistrate” for these purposes—decides whether the evidence 

establishes probable cause to believe the defendant committed 

the alleged crimes and enhancements. (§§ 859, 865, 872, subd. 

(a).) If so, the defendant is “held to answer” and the prosecutor 

must thereafter file an “information” which becomes the charging 

document on which the defendant goes to trial. (§§ 738, 739.)

The grand jury and the preliminary hearing are different 

avenues leading to the same destination—namely, both are a 

screen to ensure that an accused is not forced to endure the rigors 

of defending against criminal charges at trial unless the evidence 

supports a finding of probable cause to believe the accused is 

guilty of the crimes and enhancements at issue. (Guillory v. 

Superior Court (2003) 31 Cal.4th 168, 174 (Guillory) [“the grand 

jury serves as the functional equivalent of a magistrate who 
9

presides over a preliminary examination on a felony complaint” 

in that both “‘determine whether probable cause exists to accuse 

a defendant of a particular crime’”].) By limiting when 

allegations may be prosecuted, the screening function performed 

by a grand jury and the preliminary hearing also operates as a 

check on the executive branch, and hence reinforces the 

separation of powers. (See Jones v. Superior Court (1971) 4 

Cal.3d 660, 664; Avitia v. Superior Court (2018) 6 Cal.5th 486, 

491.)

The decision as to which avenue to walk is for the 

prosecutor to make, not the defendant. (Cal. Const., art. I, § 14;

Pen. Code, § 737; Guillory, supra, 31 Cal.4th at p. 174 [“‘district 

attorney chooses’” between the two options]; People v. Crayton

(2002) 28 Cal.4th 346, 360 [“prosecution elect[s]” between the two 

options].) A defendant has no statutory or constitutional right to 

elect how they are charged.

5 (Bowens, supra, 1 Cal.4th at pp. 42-

45 [defendant has no constitutional right to insist upon 

preliminary hearing]; People v. Reed (1962) 210 Cal.App.2d 80, 84 

[defendant has no constitutional right to insist upon indictment].)

2. Mechanisms for challenging those charges

No matter which avenue the People take, a defendant has a 

right to challenge the resulting indictment or information. 

5 For a brief period of time, our Supreme Court held that a 

defendant who was indicted had a constitutional right to a 

further preliminary examination to test the sufficiency of the 

charges. (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, 

superseded by constitutional amendment as stated in Bowens v. 

Superior Court (1991) 1 Cal.4th 36 (Bowens).) The voters enacted 

a constitutional amendment that overruled that decision (Cal. 

Const., art. I, § 14.1), and that amendment has been

subsequently upheld (Bowens, at pp. 42-45).
10

Section 995 provides a statutory basis for attacking an indictment 

or information on the ground that the evidence presented to the 

grand jury (in the case of an indictment) or to the magistrate (in 

the case of an information) did not provide “reasonable or 

probable cause” to believe the defendant committed the charged 

crime or enhancement. (§ 995, subds. (a)(1)(B) & (a)(2)(B).) A 

defendant may also file a nonstatutory motion to dismiss an 

indictment or information when the basis for dismissal is a 

ground not covered by section 995, such as when the People have 

obtained both a duplicative information and indictment (Berardi 

v. Superior Court (2008) 160 Cal.App.4th 210, 224-225), when the 

prosecution has impermissibly withheld information bearing on 

the existence of probable cause from the grand jury or magistrate 

(Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1596), or

when prosecution of a crime is barred by the statute of 

limitations as a matter of law (People v. Lopez (1997) 52 

Cal.App.4th 233, 249-250).

If an indictment or information is dismissed, the People 

may generally reinitiate a prosecution for felonies only one 

additional time. (§ 1387; Jackson v. Superior Court (2017) 4 

Cal.5th 96, 103; People v. Trujeque (2015) 61 Cal.4th 227, 255.)

B. The inherent and interstitial authority of courts 

to fashion procedures and remedies

In addition to the authority conferred upon trial courts by 

our Legislature, trial courts also have “inherent powers,” derived 

from our state Constitution, to carry out their duties and ensure 

the orderly administration of justice. (Walker v. Superior Court

(1991) 53 Cal.3d 257, 267; Bauguess v. Paine (1978) 22 Cal.3d 

626, 635-636, overruled by statute on other grounds; Swarthout 

v. Superior Court (2012) 208 Cal.App.4th 701, 708.) Although 
11

this authority derives from our state Constitution and is “‘not 

dependent on statute’” (Swarthout, at p. 708), our Legislature has 

nevertheless reaffirmed the existence of this inherent authority 

in a variety of statutes, including Code of Civil Procedure section 

187 and, for appellate courts, Penal Code section 1260. (Code 

Civ. Proc., § 187 [a court with “jurisdiction” may use “all the 

means necessary to carry it into effect,” including fashioning “any 

suitable process or mode of proceeding”]; People v. Walker (1948) 

33 Cal.2d 250, 265-266 [authority under Code of Civil Procedure 

section 187 applies in criminal cases]; People v. Ainsworth (1990) 

217 Cal.App.3d 247, 254-255 [same]; Pen. Code, § 1260 [granting 

appellate courts power to “set aside, affirm, or modify any or all 

of the proceedings” in criminal cases and “remand . . . to the trial 

court for such further proceedings as may be just under the 

circumstances”].) The courts’ inherent power includes the power 

to “fashion[] new forms of procedures when required to deal with 

the rights of the parties.” (Cottle v. Superior Court (1992) 3 

Cal.App.4th 1367, 1377; Estrada v. Royalty Carpet Mills, Inc.

(Jan. 18, 2024, S274340) __ Cal.5th __ [2024 Cal. LEXIS 123, *7]

(Estrada I).) However, the courts’ inherent authority is 

interstitial—that is, existing only where the courts otherwise 

have subject matter jurisdiction and where there are gaps in the 

law; thus, the courts’ inherent authority cannot be exercised in a 

way that conflicts with constitutional or statutory law. (Estrada

I, at pp. *7-*8; Weiss v. People ex rel. Dept. of Transportation 

(2020) 9 Cal.5th 840, 857; Citizens Utilities Co. v. Superior Court

(1963) 59 Cal.2d 805, 812-813; Britts v. Superior Court (2006) 145 

Cal.App.4th 1112, 1129.)
12

II. Analysis

We hold that a trial court, in the exercise of its inherent 

authority, has the power to reserve ruling on a defendant’s 

motion to dismiss an indictment and to resubmit a crime or 

enhancement to the grand jury to permit the People to present 

evidence relevant to new elements of the crime or enhancement 

added by our Legislature after the initial grand jury proceeding.

As a threshold matter, trial courts certainly have inherent 

authority over the grand jury, and subject matter jurisdiction 

over a criminal case arising from an indictment by virtue of the 

People’s filing of the indictment with the court. Although the

grand jury possesses an “independence of judgment” in 

determining whether evidence supports a particular criminal 

charge or enhancement (People v. Superior Court (1973 Grand 

Jury) (1975) 13 Cal.3d 430, 439; McClatchy, supra, 44 Cal.3d at 

pp. 1171-1172; accord, Daily Journal Corp. v. Superior Court 

(1999) 20 Cal.4th 1117, 1128 [noting that “the supervisory role of 

the [trial] court is sharply restricted” regarding matters 

entrusted to grand jury’s purview]), cases dating back to our 

state’s early days confirm that a grand jury is nevertheless 

“fundamentally a judicial entity” and “‘an instrumentality of the 

courts,’” and hence “‘under the control of the court[s]’” 

(McClatchy, at p. 1171; 1973 Grand Jury, at p. 438; Guillory, 

supra, 31 Cal.4th at p. 174; In re Shuler (1930) 210 Cal. 377, 405; 

Ex parte Sternes (1889) 82 Cal. 245, 247; In re Gannon (1886) 69 

Cal. 541, 543).

6 This is why courts, apart from having the 

6 Although People ex rel. Pierson v. Superior Court (2017) 7 

Cal.App.5th 402, 408, fn. 5 (Pierson) suggests that a grand jury is 

not under the “authority” of the courts when acting as a “criminal 

grand jury” rather than acting as a watchdog, we reject that 
13

statutory authority to reconvene the prior grand jury or convene 

a new grand jury after granting a dismissal motion under section 

995 (§ 997), also retain the inherent authority to discharge a 

grand jury (1973 Grand Jury, at pp. 438-439; In re Gannon, at p. 

547) as well as to intervene to prevent the grand jury from taking 

actions that exceed its statutory authority (Pierson, supra, 7 

Cal.App.5th at p. 412), such as barring a watchdog grand jury 

from filing a report outside of its statutory authority (1973 Grand 

Jury, at p. 440) or barring disclosure of grand jury materials 

when such disclosure is prohibited by statute (McClatchy, at p. 

1167; Goldstein, supra, 45 Cal.4th at pp. 221-222; Daily Journal,

at pp. 1124-1125, 1128-1129). The expansiveness of the courts’

authority dovetails neatly with the established “propriety of 

considering common law principles as supplementary to the 

applicable California statutes relating to grand juries.” (1973 

Grand Jury, at p. 440, fn. 11.)

More to the point, we conclude that this inherent authority 

encompasses a trial court’s power to reconvene the grand jury 

proceedings to give the People an opportunity, when a defendant 

has been indicted and any resulting conviction has yet to become 

final, to present evidence pertinent to new elements that our 

Legislature has seen fit to add to a charged crime or 

suggestion because those two functions are often intertwined 

(e.g., City of Woodlake v. Tulare County Grand Jury (2011) 197 

Cal.App.4th 1293, 1300 [so noting]), and, more to the point,

because judicial oversight of the grand jury is more important—

not less—when a grand jury is functioning as part of the criminal 

justice system (accord, Gillett-Harris-Duranceau & Associates, 

Inc. v. Kemple (1978) 83 Cal.App.3d 214, 222-223).
14

enhancement.7 Recognizing that trial courts have this inherent 

authority is essential to carrying out the courts’ duty to give 

retroactive effect to an ameliorative law to defendants whose 

convictions are not yet final under In re Estrada (1965) 63 Cal.2d 

740 (Estrada II). (Tran, supra, 13 Cal.5th at pp. 1206-1207; 

People v. Esquivel (2021) 11 Cal.5th 671, 675; Tapia v. Superior 

Court (1991) 53 Cal.3d 282, 301.) It is also essential to carrying 

out the courts’ duty to enforce the new, ameliorative law—which 

in this context is meant to prescribe new elements the People 

must prove, not to give procedurally fortuitous defendants a “get 

out of jail free card” as to the amended crime or enhancement. 

Recognizing that trial courts have this inherent authority is also 

essential to ensuring the orderly administration of justice. If 

courts lacked this authority, a defendant who had been indicted 

but whose conviction was not yet final would be entitled to a 

7 Because the trial court in this case reopened grand jury

proceedings (in front of a different grand jury since the grand 

jury that originally indicted defendant expired several years ago), 

we need not decide whether a trial court also has the inherent 

authority to send the matter to a “magistrate” for a preliminary 

hearing on the newly added elements. Although our state 

Constitution now provides that “[i]f a felony is prosecuted by 

indictment, there shall be no postindictment preliminary 

hearing” (Cal. Const., art. I, § 14.1), and our Supreme Court has 

extended this bar to “procedure[s]” “similar” to a preliminary 

hearing (Bowens, supra, 1 Cal.4th at pp. 39, 46), this provision is 

aimed at preventing a criminal defendant from getting a second 

bite at trying to prove that the evidence is insufficient to hold 

him to answer (id., at pp. 47-48). It is unclear whether it applies 

where, as here, the grand jury had no prior occasion to consider 

the evidence pertinent to a newly added element. We leave this 

question for another day.
15

dismissal of any crimes or enhancements to which our 

Legislature added new elements. Yet a defendant who had been 

held to answer after a preliminary hearing but whose conviction 

was not yet final would not be entitled to dismissal when new 

elements are added to a crime or enhancement (because, as 

discussed below, courts do have the authority by statute to send 

the matter back for a supplemental preliminary hearing). This 

seemingly random outcome is neither just nor orderly; it certainly 

does not ensure the orderly administration of justice.

Drawing upon the above-noted principle that a court’s 

inherent authority cannot conflict with statutory limits imposed 

by our Legislature, defendant argues that section 995a provides 

the sole circumstance under which a trial court may send a case 

back for further proceedings while reserving a ruling on a motion 

to dismiss an indictment or information. What is more, 

defendant continues, section 995a only authorizes sending a case 

back for a further preliminary hearing and not for further grand 

jury proceedings. Thus, defendant concludes, our Legislature’s 

silence must be construed as a prohibition that precludes courts 

from using their inherent authority to reconvene grand juries to 

hear evidence pertaining to newly added elements of crimes and 

enhancements. 

To be sure, section 995a says what defendant says it says.

Section 995 not only creates a mechanism by which a 

criminal defendant can move to dismiss an indictment or 

information due to the absence of “reasonable or probable cause” 

to support it (§ 995, subds. (a)(1)(B) & (a)(2)(B)), but also 

empowers a court to “reserve a final ruling on [that] motion” 

while “order[ing] further proceedings to correct errors alleged by 

the defendant” pursuant to section 995a (§§ 995, subds. (a) & (b), 
16

995a, subd. (b)). Section 995a specifies that a court “may,” if the 

People so request, “order further proceedings to correct errors 

alleged by the defendant” in an information if (1) “the court finds 

that such errors are minor errors of omission, ambiguity, or 

technical defect”; and (2) those errors “can be expeditiously cured 

or corrected without a rehearing of a substantial portion of the 

evidence.” (§ 995a, subd. (b)(1); see Garcia v. Superior Court 

(2009) 177 Cal.App.4th 803, 814 (Garia II) [listing these 

elements]; Caple v. Superior Court (1987) 195 Cal.App.3d 594, 

601.)8 An “error” is “minor” if it is “comparatively unimportant” 

(Caple, at p. 602; Garcia II, at pp. 816-817); because this 

assessment as well as the assessment as to whether a 

“substantial portion” of the evidence would need to be reheard 

will vary from case to case, the applicability of section 995a’s 

procedure must be assessed on a “case by case basis” (Caple, at p. 

602). Applying these definitions, courts have held that section 

995a does not permit further preliminary hearing proceedings to 

correct errors in evidentiary rulings (Tharp, supra, 151 

Cal.App.3d at p. 220 [so holding, because an evidentiary ruling is 

not an “omission”]), in suppression rulings (Loverde v. Superior 

Court (1984) 162 Cal.App.3d 102, 104-105 [so holding, because 

there was no “ambiguity”]), or to give the People the opportunity

8 Section 995a abrogated Supreme Court precedent holding 

that a trial court could not order further proceedings except to 

remedy “clerical” errors because doing so was, in the Court’s 

view, an impermissible “circumvent[ion of] the longer route of 

rearresting a discharged defendant, refiling the case and 

beginning prosecution anew.” (Burnett v. Superior Court (1974) 

12 Cal.3d 865, 871-873 (Burnett); see also id. at pp. 870-873; see 

generally Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 

219 (Tharp) [noting how section 995a abrogated Burnett].)
17

to cure deficiencies that were not “minor” (Garcia II, at pp. 806, 

818). Section 995a has no provision whatsoever for ordering 

further proceedings before a grand jury when a defendant 

challenges an indictment.9 

But section 995a’s language does not preclude a trial court, 

in the exercise of its inherent authority, from ordering further 

proceedings before a grand jury in response to the creation of new 

elements by our Legislature. We reach this conclusion for three 

reasons.

First, and as a general matter, while defendant is correct 

that there is a “settled principle of statutory interpretation that if 

a statute contains a provision regarding one subject, that 

provision’s omission in the same or another statute regarding a 

related subject is evidence of a different legislative intent” (People 

v. Arriaga (2014) 58 Cal.4th 950, 960), the principle does not—as 

defendant insists—inevitably or necessarily mean that legislative 

silence on a topic forecloses the exercise of a court’s inherent 

authority, particularly given that our Legislature enacts statutes 

against the backdrop of the existence of that authority. “[G]aps 

left unaddressed by statutes”—that is, legislative silence—are 

still gaps, and may be filled by courts through the exercise of 

their inherent authority in the absence of a clear legislative 

intent to the contrary that goes beyond the silence itself. (Lujan, 

supra, 11 Cal.App.4th at p. 1507; People v. Vaesau (2023) 94 

9 Section 995a permits a court to “order” that an indictment 

be amended (1) to list the names of grand jury witnesses omitted 

from the indictment, and (2) to add the district attorney’s 

signature. (§ 995a, subd. (a).) Because these interlineations can 

be made by the trial court itself, section 995a neither requires nor 

contemplates further proceedings before the grand jury.
18

Cal.App.5th 132, 150-151; cf. Estrada I, supra, 2024 Cal. LEXIS 

at pp. *8-*9, *12-*18 [courts’ inherent authority to dismiss claims 

due to manageability considerations in class actions and in other 

certain “limited circumstances” does not confer inherent 

authority to dismiss claims on that basis in Labor Code Private 

Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) cases, 

which Legislature prescribes are not subject to class action 

procedures].)

Second, even if we were to view section 995a’s silence as 

evincing a legislative intent to allow further preliminary hearing 

proceedings but not further grand jury proceedings, that 

dichotomy is irrelevant to this case because section 995a does not 

speak to the issue presented here. By its plain text, section 995a 

authorizes a court to reopen a preliminary hearing proceeding 

only to “correct errors” (if those errors meet the statute’s other 

requirements). (§ 995a, subd. (b)(1), italics added.) But where, 

as here, the issue is solely the absence of evidence relevant to 

elements of a crime or enhancement that did not exist at the time 

of the preliminary hearing, there was no error in the preliminary 

hearing proceeding: On the law and the evidence in existence at 

the time of the preliminary hearing, the magistrate did not err. 

(Mendoza, supra, 91 Cal.App.5th at pp. 60-61 [accepting 

concession of parties that “there was [no] error in the original 

commitment” when the law changed thereafter]; accord, Burnett,

supra, 12 Cal.3d at p. 873 [review of preliminary hearing looks to 

“the testimony presented”], italics omitted.) Thus, in our view, 

section 995a does not address the situation posed by the addition 

of new elements that Estrada II renders retroactively applicable, 

so a trial court’s power to reopen any proceedings—either 

preliminary hearing proceedings or grand jury proceedings—
19

stems not from section 995a, but instead from its inherent 

authority.10 And to hold that no such inherent authority exists 

would force us to read Assem. Bill No. 333 as immunizing socalled pipeline defendants—whether charged by indictment or 

information—from criminal liability for any crimes or 

enhancements amended prior to trial.

11 Assem. Bill No. 333 

purports to do many things, but it does not purport to grant such 

immunity. A court may therefore exercise its inherent authority 

to reopen grand jury proceedings in this context. Defendant 

resists this conclusion by citing Currie v. Superior Court (1991) 

230 Cal.App.3d 83, but Currie merely held a trial court lacked the 

10 Indeed, we harbor doubt that section 995 is the proper 

vehicle for moving to dismiss an indictment or information in this

context because, at the time of the initial grand jury proceedings 

or preliminary hearing, there was probable or reasonable cause to 

proceed, and the deficiency defendant alleges is solely due to the 

retroactive application of a later-enacted statute. (Accord RodasGramajo v. Superior Court (2023) 92 Cal.App.5th 656, 672, 680 

(Rodas-Gramajo) (conc. opn. of Tucher, J.) [expressing similar 

doubt]; but see id. at pp. 663-664 (maj. opn. of Rodríguez, J.) 

[validating use of section 995 motion to dismiss when the law has 

changed].) However, we leave this question for another day.

11 Although Estrada II gives the benefit of retroactively 

applicable laws to any defendants whose convictions are not yet 

final on direct appeal, one subset of defendants with nonfinal 

convictions—namely, those who were found guilty at trial by a 

jury that was instructed to find the new elements of a crime or 

enhancement—would not be immune because the jury’s verdict 

and findings as to the new elements render harmless any 

deficiency in the quantum of evidence before the grand jury. 

(People v. Becerra (2008) 165 Cal.App.4th 1064, 1071 [collecting 

cases].)
20

inherent authority to reopen preliminary hearing proceedings in 

response to a nonstatutory motion to dismiss when the defendant 

in that case was not entitled to one under section 995a (id. at pp. 

88, 90-92); Currie therefore deals with a court’s end run around 

statutory procedures. Here, the statutory procedure at issue—

section 995a—simply does not apply.

Third and lastly, even if we were to rule that section 995a 

does apply (as did Mendoza, supra, 91 Cal.App.5th at pp. 58-62

and Rodas-Gramajo, supra, 92 Cal.App.5th at pp. 664-671), we 

would construe it as not precluding a trial court’s inherent 

authority to reopen grand jury proceedings because the contrary 

construction would lead to what we view as absurd results. 

(People v. Leiva (2013) 56 Cal.4th 498, 506 [a court may “‘reject a 

literal construction’” of a statute “‘that would lead to absurd 

results’”].) If, as defendant suggests, we were to construe section 

995a as a bar to reopening proceedings in the context of this case, 

then further proceedings would be available only (1) for those 

defendants whose prosecutions had been initiated by preliminary 

hearing, and (2) if the statutory amendments were not so 

extensive as to make the “error” no longer “minor” in the context 

of that particular case. This would mean that a new statute 

adding elements to a crime or enhancement would render 

pipeline defendants absolutely immune from liability for that 

crime or enhancement if (1) their prosecution had been initiated 

by grand jury, (2) the scope of the amendments was extensive

(rather than “minor”), or (3) there had already been a prior 

reopening of preliminary hearing proceedings due to prior 

amendments of the same crime or enhancement (thereby 

implicating the one-refiling rule). Although laws redefining and 

narrowing crimes and enhancements (and rendering them 
21

subject to re-litigation) are a relatively new innovation, they are 

becoming increasingly commonplace. Yet conferring immunity to 

pipeline defendants by default—due to the absence of a procedure 

to address the newly enacted elements—is nowhere documented 

as an intended purpose of these new laws and leads to results 

that turn on fortuity rather than rationality, thereby summoning 

the very real specter of invalidation under equal protection 

principles. (See People v. Turnage (2012) 55 Cal.4th 62, 74-75 

[differential treatment of criminal defendants that does not 

involve a suspect class or fundamental right must be rational]; 

accord Rodas-Gramajo, at pp. 678-679 (conc. opn. of Tucher, J.) 

[coming to same conclusion in this context].) We therefore 

construe section 995a in this manner to avoid such potential 

invalidation. (People v. Miracle (2018) 6 Cal.5th 318, 339 [“‘a 

statute must be construed, if reasonably possible, in a manner 

that avoids a serious constitutional question’”].)
22

DISPOSITION

The petition is denied.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ