Filed 1/25/2024
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CARLOS CHAVEZ, B332361
Petitioner, (Los Angeles County
Super. Ct. No. BA452909)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Lisa B. Lench,
Judge. Petition denied.
Law Office of Tracy Casadio and Tracy Casadio for
Petitioner.
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.
2
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.
3
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”
4
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,
5
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).
6
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).)
7
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
8
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).
9
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
10
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.)
11
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
12
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).
13
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.
14
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),
15
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].)
16
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.
17
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—
18
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 so-
called 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 Rodas-
Gramajo 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].)
19
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
20
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’”].)
21
DISPOSITION
The petition is denied.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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