Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Donald E. Shaver, Judge, Stanislaus Co. S.Ct. No. 1232853
Birgit Fladager, District Attorney, Carol Shipley, Assistant District Attorney, David P. Harris, Chief Deputy District Attorney, and Shawn D. Bessey, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Perry & Associates and Robert M. Wildman, for Real Party in Interest.
OPINION
Before Ardaiz, P.J., Cornell, J. and Dawson, J.
Real party in interest, Steven Anthony Pack (Pack), and two others were at a taco truck parked on Crows Landing. The victim group arrived at the taco truck in two vehicles after leaving a pizza parlor. As their second car pulled up, the occupants noticed their friends who had arrived earlier in the first car were talking to three individuals, later identified as Pack, Jose Barajas, and Nicholas Castaneda. A confrontation started, and eventually the three individuals in Pack’s group, at least one of whom was seen with a handgun during the confrontation, drove away slowly in their vehicle. With two of them standing on the running broads, they began to fire shots into the victim group as they remained near the taco truck. One of those individuals was killed, and another received a gunshot wound.
After the shooting, the vehicle that Pack’s group was in sped off. Some of the men from the victim group gave chase. Shots were again fired from the Pack group vehicle.
Pack and his codefendants were bound over on all charges following the preliminary hearing. Other counts were later added.
An information was filed on July 8, 2008. Besides the charges of murder and multiple counts of attempted murder, in counts I through VIII, Penal Code section 186.22, subdivision (b) was alleged, and in counts I through X, Penal Code section 12022.53, subdivision (e)(1) was alleged. Firearm enhancements were also alleged. Pack’s personal gun use enhancements also included allegations pursuant to Penal Code section 12022.53, subdivision (b).
Pack filed a motion pursuant to Penal Code section 995 to set aside the information. The district attorney filed opposition.
A hearing on the motion began January 27, 2009, and concluded on February 26, 2009. The motion was granted in part, with the court concluding that there was insufficient evidence of aiding, abetting, or participating in a criminal street gang, that there was insufficient evidence the charged incident was gang related, and that the alleged predicate acts were insufficient as a matter of law to support a reasonable suspicion of active gang participation. One count was dismissed – count XIV, charging participation in a criminal street gang. The enhancements alleged pursuant to Penal Code section 12022.53, subdivision (e)(1) in counts I through X, and the enhancements alleged pursuant to Penal Code section 186.22, subdivision (b) in counts 1 through XIII were dismissed as to Pack.
The court’s tentative ruling was made final on February 26, 2009.
The present petition was filed on April 10, 2009. A response was ordered, and filed on May 1, 2009.
Trial as to all defendants was stayed by this court on April 16, 2009.
DISCUSSION
“In determining if charges in an information can withstand a motion under section 995, neither the superior court nor the appellate court may reweigh the evidence or determine the credibility of the witnesses. [Citations.] Ordinarily, if there is some evidence in support of the information, the reviewing court will not inquire into its sufficiency. [Citations.] Thus, an indictment or information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged. [Citations.] [¶] ‘Although there must be some showing as to the existence of each element of the charged crime [citation] such a showing may be made by means of circumstantial evidence supportive of reasonable inferences on the part of the magistrate.’ [Citation.] ‘Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.’ [Citations.] Thus, the ultimate test is that ‘“‘[a]n information will not be set aside or prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.’”’ [Citation.] [¶] We review the evidence in support of the information to determine whether as a matter of law it is sufficient, not whether the trial court’s ruling was reasonable. [Citations.]” (People v. Superior Court (Jurado )(1992)4 Cal.App.4th 1217, 1226, italics in original.)
The victim group was asked by Pack’s group if they were “gang bangers.” The term “scrap” was used by Pack and his group in reference to the victim group. Detective Soria, a gang expert, testified the term “scraps” is a derogatory term used to disrespect the Sureno street gang. There was considerable evidence linking the other two members of Pack’s group with a street gang. In the context of the encounter, and the totality of the circumstances in which it was used, an inference can be drawn that “scrap” was a reference to rival gang members, rather than how the term is “commonly used,” as described by the superior court in its denial order. Given the legitimate inferences that can be drawn from this and other evidence presented at the preliminary hearing, it can reasonably be concluded the charged incident was gang related.
In addition to the evidence above, there were three other incidents relied upon by Detective Soria supporting a reasonable suspicion that Pack was an active participant in a gang at the time. One involved illegal drugs and a weapon, both of which were associated with gang activity. Another involved a statement by a co-occupant of a vehicle during a traffic stop, in which this individual stated to police that Pack was “trying to bang red.” The stop resulted in Pack admitting in juvenile court that he was in possession of a gun. A third, recorded on a field identification card, stated Pack was “hanging with an admitted Norteno friend.” Given all of the evidence, this court cannot say a total absence of evidence exists that would support a reasonable suspicion Pack was an active participant in a street gang on the night in question.
DISPOSITION
Petitioner is entitled to appropriate relief. (Code Civ. Proc., § 1085; see People v. Municipal Court (Bonner) (1980) 104 Cal.App.3d 685.) A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181.)
Let a peremptory writ of mandate issue directing the Superior Court of Stanislaus County to vacate that portion of the order rendered on February 26, 2009, in which the court adopted and made final its tentative ruling, in Stanislaus County Superior Court action No. 1232853 and found “there is no rational ground to believe that a violation of PC §186.22(a), participation in a criminal street gang, as charged in Court [sic] 14, or the enhancements pursuant to PC §12022.53(e)(1) in Counts 1-10 or the enhancements pursuant to PC §186.22(b) in Counts 1-13 has [sic] been committed, and they are ordered stricken as to defendant Pack” and to enter a new order denying Pack’s motion pursuant to Penal Code section 995.
The stay issued by this court on April 16, 2009, is dissolved.