Unreported / Non-Citable
Background
In 2018, a jury convicted Ho Young Lee of assault with mayhem, two counts of attempted murder, five counts of assault with a deadly weapon, and participating in a criminal street gang, and found that he committed the assault and murder offenses for the benefit of a criminal street gang. While his direct appeal remained pending, Assembly Bill 333 amended Penal Code section 186.22 by adding new requirements for the gang offense and enhancements. The Court of Appeal concluded that Lee was entitled to the ameliorative changes even though the evidence had sufficed under former law. It reversed and remanded for possible retrial on the substantive gang count and gang special allegations, with resentencing on the other convictions to follow retrial or a prosecutorial election not to retry them.
On remand, Lee moved under section 995 to dismiss the gang count and allegations, arguing that the evidence presented at his 2016 preliminary hearing was insufficient under current law. The trial court refused to entertain the motion, reasoning that the remittitur gave the prosecution an opportunity to retry those matters and therefore foreclosed a motion that could prevent retrial. After the Court of Appeal summarily denied Lee's first writ petition, the California Supreme Court decided People v. Lopez. The trial court then denied reconsideration, finding that Lopez did not address its jurisdictional ruling. Lee petitioned again, and the appellate court issued an order to show cause after receiving supplemental briefing.
The Court’s Holding
Reviewing its own remittitur de novo, the court held that "possible retrial" encompassed not only a trial but also procedural safeguards through which a defendant could seek to limit the charges to be retried. Its earlier directions restricted the issues available for retrial, not either party's procedural rights. The court analogized to a resentencing remand that permitted examination of the entire sentencing scheme and noted that its prior opinion had anticipated litigation over evidence during the limited retrial. It therefore concluded that the remittitur did not insulate the prosecution from a pretrial challenge to the sufficiency of the evidence supporting the information.
The court also rejected the prosecution's reliance on decisions enforcing much narrower remands, including affirmance of a death judgment and remand solely for reconsideration of an automatic modification application. Lee's case instead involved substantive relitigation under a new elemental statute. Lopez further confirmed that remittitur jurisdiction does not prevent retroactive application of ameliorative laws. The court rejected the section 999a timeliness objection because this was not the type of prohibition petition governed by that provision. It ordered a peremptory writ of mandate requiring the trial court to vacate its May 7, 2025 order denying reconsideration, enter a new order granting the motion, and decide the merits of Lee's motion to dismiss the information.
Key Takeaways
- A remand for possible retrial can preserve ordinary pretrial procedural rights even when the appellate disposition limits the issues that may be retried.
- The Court of Appeal held that its remittitur did not deprive the trial court of jurisdiction to entertain Lee's challenge to the information.
- The prosecution's section 999a timeliness argument failed because Lee's petition was not the kind of prohibition petition covered by that statute.
- The writ requires reconsideration and a merits decision on the motion to dismiss, rather than an appellate ruling that the information must be dismissed.
- The trial court may initially resolve whether the preliminary hearing should be reopened and what proceedings are appropriate for deciding the motion.
Why It Matters
The decision distinguishes limits on the substantive scope of a remand from limits on procedural rights associated with retrial. It applies that distinction to prosecutions affected by Assembly Bill 333, allowing a defendant to invoke an intervening change in law through a challenge to preliminary-hearing evidence without treating the remand as an automatic bar to motion practice.
The opinion leaves important questions open. It does not decide whether section 995 is the best characterization of Lee's motion, does not limit the proceedings the trial court may use, and does not resolve the prosecution's request to reopen the preliminary hearing. Although the prosecution conceded that the existing 2016 preliminary-hearing evidence would be insufficient under current law for the remaining gang matters, the appellate court did not itself order dismissal.