California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL fro the Superior Court of Riverside County Super.Ct. No. INF1300854. William S. Lebov, Judge. (Retired Judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI, §6 of the Cal. Const.) Reversed.
[Copyrighted Material Omitted]
Paul E. Zellerbach, District Attorney and Kelli Catlett, Deputy District Attorney, for Plaintiff and Appellant.
Gambale & Gambale and Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Respondent.
RICHLI Acting P. J.
On April 11, 2013, a felony complaint charged defendant and respondent Mario Alberto Gonzalez (defendant) with (1) five counts of violating Penal Code section 422 (criminal threats) (counts 1-5), all of which also specially alleged violations of section 186.22, subdivision (b)(1)(B) (that defendant had the specific intent to promote, further and assist in criminal conduct by gang member); and (2) one count of violating section 166, subdivision (a)(10) (disobeying the terms of an injunction) (count 6). The complaint also alleged that defendant had suffered a prior serious felony conviction for violating section 192, subdivision (a) (voluntary manslaughter), and section 245, subdivision (a)(2) (assault with a firearm), under section 667, subdivisions (a), (c), and (e)(1), and section 1170.12, subdivision (c)(1). The complaint further alleged that defendant suffered three prior offenses with state prison
sentences under section 667.5, subdivision (b). Defendant was arraigned the same day. He entered pleas of not guilty to all charges and denied all special allegations.
On June 17, 2013, an information charged defendant with all of the counts previously alleged in the complaint, as well as two additional counts for misdemeanor violations of section 415, subdivision (l) (challenging another to fight in a public place). These counts also contained special allegations for violations of section 186.22, subdivision (d) (specific intent to promote, further and assist in criminal conduct by gang members). On June 18, 2013, defendant was arraigned on the information. He entered pleas of not guilty to all charges and denied all special allegations.
On August 9, 2013, defendant filed a motion to set aside the information and dismiss all counts alleging violations of section 422 (criminal threats) and 415 (challenging another to fight in a public place). On August 21, 2013, the People filed an opposition to defendant’s motion. On August 23, 2013, the trial court held a hearing on the motion. Thereafter, the court granted defendant’s motion and dismissed counts 1 through 7 – all of the counts charging violations of sections 422 and 415, and the related allegations. That same day, defendant pled guilty to count 8, a violation of section 166, subdivision (a)(10) (disobeying the terms of an injunction). On October 22, 2013, the People filed a notice of appeal.
On appeal, the People contend that the trial court erred in granting defendant’s motion to dismiss counts 1 through 5 (criminal threats). For the reasons set forth below, we agree with the People. Therefore, we shall reverse the order ...