1 STEPHEN M.

WAGSTAFFE, DISTRICT ATTORNEY

County of San Mateo, State of California
2 State Bar No. 78470
4/11/2024
400 County Center, 3rd Floor
3 Redwood City, California 94063
By: Joseph L. Cannon, Deputy
4 Telephone: (650) 363-4636
Attorney for Plaintiff
5

8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 IN AND FOR THE COUNTY OF SAN MATEO

10 THE PEOPLE OF THE STATE OF CALIFORNIA

No. 22-SF-013823-A
11 Plaintiff,
OPPOSITION TO DEFENDANT’S
12 v. MOTION TO SET ASIDE THE
INFORMATION PURSUANT TO
13 GREGORY LOVE, PENAL CODE SECTION 995

14 Defendant.
Date: April 15, 2024
15 Time: 10:00 AM
Dept: CR
16

17
COMES NOW the Plaintiff, the People of the State of California, by and through their
18
attorneys, STEPHEN M. WAGSTAFFE, District Attorney, and JOSEPH CANNON, Deputy District
19
Attorney, respectfully submits the following Points and Authorities in Opposition to Defendant’s
20
Motion to Set Aside the Information Pursuant to Penal Code Section 995. The People’s opposition is
21
based on this memorandum, the pleadings and papers in the above captioned case, any arguments that
22
may be made at the hearing, and such evidence and documents as may be submitted.
23
\\\
24

25
1 INTRODUCTION

2 The preliminary hearing in this matter was heard on December 18, 2023 by the Honorable

3 Jeffrey B. Jackson, who held Defendant to answer on all charges in the felony complaint, to wit:

4 Count 1: 487(a) PC and found the special allegations pursuant to 12022.6(a)(2) PC and 803(c) PC to

5 be true.

6 The People filed an Information alleging four counts of 487(a) PC each with a special

7 allegation pursuant to 186.11(a)(2) PC (essentially breaking down the singular, overarching theft

8 previously alleged in Count 1 of the Complaint into 4 separate counts – 1 for each year) as well as the

9 803 PC Zamora allegation as to all 4 counts.

10 Defendant now brings a PC § 995 motion. The People are opposed.

11
STANDARD OF REVIEW
12

13 In ruling on a motion brought pursuant to Penal Code Section 995, neither the Superior Court

14 nor an appellate court may substitute its judgment for that of the committing magistrate as to the

15 weight of the evidence. (People v. Hall (1971) 3 Cal. 3d 992, 996). “[I]f there is some evidence to

16 support the information, the court will not inquire into its sufficiency.” (Rideout v. Superior Court

17 (1967) 67 Cal. 2d. 471, 474). “[A]lthough there must be some showing as to the existence of each

18 element of the charged crime, such a showing may be made by means of circumstantial evidence

19 supportive of reasonable inferences on the part of the magistrate.” (Williams v. Superior Court (1969)

20 71 Cal. 2d 1144, 1148 (internal citation omitted)). “Every legitimate inference that may be drawn

21 from the evidence must be drawn in favor of the information.” (Rideout, 67 Cal. 2d at 474). In short,

22 an information should not be set aside pursuant to PC § 995 if there is some rational ground for

23 assuming the possibility that an offense has been committed and the defendant is guilty of it. Id.

24

25

2
1 STATEMENT OF THE FACTS

2 The following evidence was adduced at the preliminary hearing.

3 Defendant Gregory Love (hereinafter “Defendant”) served as Chief of Police of the

4 Broadmoor Police Department in San Mateo County. (TX 5, Line 8-12). Defendant obtained a

5 medical disability retirement on May 16, 2009 from Broadmoor PD but continued to work at

6 Broadmoor PD from May 2009 through the end of 2021 (TX 13). While Defendant continued to work

7 while collecting his disability retirement, he was paid twice the regular salary he had previously been

8 paid but reporting half as many hours as Police Chief (TX 11: LN17- TX12: LN 6.)

9 An investigation into fraud involving CalPERS benefits fraud began on March 10, 2021 when

10 San Mateo County District Attorney’s Office– e-mail sent by “Mike White” (an apparent pseudonym)

11 sent a complaint regarding former Broadmoor Police Chief Parenti regarding possible fraud against

12 CalPERS – no mention of Defendant had been made at that point (TX 5-6) DA Office’s Inspector

13 Kevin Raffaelli, a 45 year veteran of law enforcement, familiar with CalPERS benefits and reporting

14 requirements, was assigned to investigate.

15 As part of his preliminary investigation, Raffaelli contacted the San Mateo County

16 Comptroller’s Office to obtain payroll records for Broadmoor PD, which included records for

17 Defendant, to compare salaries to former Chief Parenti. (TX 6-8) Raffaelli noted that at certain times

18 during his employment, Defendant appeared to be receiving an hourly salary that was twice the

19 normal rate for similar positions at Broadmoor PD while claiming to work 18 hours per week. (TX 9:

20 LN 7-22) Inspector Raffaelli, determined that after May 16th, 2009 up until November 24th, 2012,

21 the defendant was being paid twice the regular salary he had previously been paid but

22 reporting half as many hours as Police Chief. (TX 11: LN17- TX12: LN 6)1 Inspector Raffaelli, based

23 upon his training and experience, was aware that CalPERS retired annuitants may only work 960

24 hours per fiscal year and can only work in a part-time or limited position to fill a vacancy (TX 11-12.)

25

3
1 At that point, Inspector Raffaelli suspected Defendant was defrauding CalPERS and reported those

2 suspicions to CalPERS on April 13, 2021. (TX 13)

3 Inspector Raffaelli’s investigation further revealed that Broadmoor PD, which patrols a very

4 small community and is a small department, has a unique organizational structure in which

5 the Chief of Police also functions as a City Manager, which is then overseen by a police commission

6 consisting of 3 commissioners. (TX 14) Raffaelli spoke with a number of Broadmoor PD employees

7 including accountant Robin Rose who was employed while Defendant was chief, advised her on

8 salaries. (TX 15) At one point, after Love had returned from retirement, Rose noted that Defendant’s

9 hourly rate had doubled and further, that she was further aware of CalPERS’ 960 hour per fiscal year

10 limitation. She discussed this with Defendant who stated he could simply cut his time in half and

11 double his salary, which she found unusual. (TX 17-18) Defendant told her the Commission had

12 approved it. (TX 18)

13 Raffaelli also spoke with Broadmoor PD Administrative Assistants Nicole Azzopardi and

14 Enissa Sosa Rios. (TX 21-25) Ms. Azzopardi, who had handled payroll advised that payroll

15 information (i.e. officers and the hours they worked) would be submitted to the County and CalPERS

16 through an online system (TX 21-22) CalPERS information was submitted on a bi-weekly basis and

17 included a list of all employees including retired annuitants. (TX 23) Ms. Sosa-Rios advised that

18 when Defendant returned from his surgery, he continued to work full-time and she was unaware that

19 he had actually retired due to a disability. (TX 25) MS. Sosa Rios further stated that either Chief Love

20 or Commander Parenti did all the data entry for payroll and CalPERS reporting. (TX 25)

21 Raffaelli also spoke with Police Commissioners Joseph Sheridan and Ralph Hutchens, both of

22 whom were on the commission while Defendant was Chief. Hutchens advised that he was unaware

23 that Defendant claimed half-time work while collecting full time pay post-retirement. specifically

24 stating, “Wow. In a sense it sounds like they were double-dipping" (TX 19). After confirming that the

25
1
Note: At this page, the transcript reads “March 16, 2009” which appears to be either as misstatement or a typo, as “May
4
1 Police Commission had, in fact, approved Defendant’s disability retirement, asked if he was aware

2 Defendant was working full time Hutchens stated, “ There was some discussion. I don't remember it

3 clearly. There was some discussion a little bit that they were going to save the department money

4 somehow by charging so much and dealing with retirement and everything. I had no clue. I don't

5 remember the details. I just kind of remember the fuzzy discussion.” (TX 34)

6 Hutchens also stated when he took his position on the Police Commission, he knew little

7 about the Broadmoor Police Department: "Things were kind of sketchy at the time. I came on from

8 the community, kind of representing the community, but I was not totally versed on how a police

9 station worked and everything really -- they didn't really put you through any training. So I started

10 going to a meeting once a month and absorbing what I could at the meetings. They did not. Things

11 were kind of slack that way"? (TX 35)

12 Commissioner Sheridan stated that Chief Love was hired initially as a full-time chief but then

13 retired and immediately returned as a “contract employee” for another two to three years. Sheridan

14 stated he was not aware of the salary or hourly rate that the defendant was being paid because the

15 budget only included the yearly total for salary. (TX 20-21). Sheridan initially stated that he did not

16 recall the Police Commission approving Defendant’s Disability Retirement, even though Broadmoor

17 PD records introduced at the prelim establish that the Commission had approved it. (TX 30) When

18 asked about that disparity Sheridan told Raffaelli, “(Defendant) was on a contract and everyone was

19 doing it. What I understood, that they were retiring and essentially not paying into the retirement

20 system. They were collecting their retirement and double-dipping, essentially." (TX 31) “ It was an

21 okay thing. They were saving the district money by not paying into retirement and we, only as the

22 commissioner [sic], we get what is told to us by the staff and that is what we went off of. (TX 31) By

23 staff, Sheridan meant the Police Chief or Commander including Chief Love (TX 32)

24

25
16, 2009” is the correct date as seen throughout the remainder of the transcript.
5
1 CalPERS Division Chief Lisa Renee Ostrander testified that CalPERS is a state agency

2 funded through member contributions, employer contributions and investment earnings made on

3 those funds. (TX 51) Ms. Ostrander testified that she initiated an audit of Defendant’s retirement

4 benefits after CalPERS had been notified of the fraud by Inspector Raffaelli in April 2021. (TX 51)

5 Prior to that time CalPERS received any complaints, anonymous or otherwise, regarding Mr. Love

6 working as a retired annuitant at Broadmoor PD (TX 52) CalPERS had no record of Mr. Love

7 resuming employment with Broadmoor PD on May 17th, 2009, after he retired (TX 52)

8 As both Chief of Police and as a retired annuitant working for a CalPERS employer,

9 Defendant was required by CalPERS regulation to report any post- retirement employment to

10 CalPERS. (TX 52-53) These reporting requirements are made clear to Police Chiefs and CalPERS

11 members and annuitants via online reference guides, circular letters, online and in-person training.

12 (TX 53-54)

13 Per Ms. Ostrander, Defendant defrauded CalPERS in 4 different ways: (TX57-58)

14 1. Defendant had employment which was not temporary, interim, or for a limited duration for

15 the time period May 17th, 2009 to December 1st, 2012.

16 2. Defendant received full-time salary as chief of police while receiving retirement

17 benefits and a pay rate that exceeded the maximum paid by the employer to other employees

18 performing comparable duties.

19 3. Defendant returned as a retired annuitant as the chief of police which was the same

20 position that he was approved of for industrial disability retirement.

21 4. Defendant as the employer did not report the retired annuitant to CalPERS; therefore, pay rate,

22 compensation, and hours worked were not reported

23

24 The total loss to CalPERS as a result of Defendant’s of fraud was 1.86 million dollars. (TX 59)

25 \\\

6
1 ARGUMENT

2 I. Sufficient Evidence Was Presented in Support of the Penal Code Section

3 803(c) Statute of Limitations Tolling Allegation

5 Under Penal Code section 803 (c), a limitation of time prescribed in that section does not

6 commence to run until the discovery of the offense described, which includes the commission of the

7 crimes of grand theft (Penal Code section 803(c)(1). Further, Penal Code Section 801.5 provides that

8 prosecution for any offense described in subdivision (c) of Section 803 shall be commenced within

9 four years after discovery of the commission of the offense, or within four years after the

10 completion of the offense, whichever is later. At trial, the People have the burden of proving by a

11 preponderance of the evidence that the prosecution of the case began within the required time. (Cal

12 Crim 3410)

13
The statute of limitations period is triggered when the victim or a responsible law
14
enforcement official learns of the facts and if investigated with reasonable diligence, would make that
15
person aware that a crime has been committed. (People v. Rodriquez (2021) 71 Cal.App.5th 921,
16
930.) Under the discovery rule, the prosecution can overcome the statute of limitations by proving
17
that: (1) when and how the facts became known to the victim, (2) lack of knowledge prior to that
18
time, and (3) that he had no means of knowledge or notice which followed by inquiry would have
19
shown at an earlier time that circumstances of the relevant action. (Id. at 929.) In cases involving
20
fiscal crimes against the government, a “victim” for purposes of the discovery rule is “a public
21
employee occupying a supervisorial position who has the responsibility to oversee the fiscal affairs of
22
the governmental entity and that has the legal duty to report a suspected crime to law enforcement
23
authorities.” (People v. Lopez (1997) 52 Cal.App 4th 233, 247-284.)
24

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7
1 The People alleged the following in Enhancement #2 of the Complaint and Enhancement #1

2 of the Information.

3
PC803(c): Special Allegation-Statute Of Limitations-Late Discovery (Zamora Allegation)
4 It is further alleged as to Count 1 , offenses described in Penal Code section 803(c),that the above
violation was not discovered until April 14, 2021 by San Mateo County District Attorney's Office
5 Inspector Kevin Raffaelli by reviewing payroll records for the Broadmoor Police Department, and
that no victim of said violation and no law enforcement agency chargeable with the investigation and
6 prosecution of said violation had actual and constructive knowledge of said violation prior to said
date because Defendant never reported his post-retirement employment to CalPERS, within the
7 meaning of Penal Code section 803(c).

8 As the evidence at the preliminary hearing established above, both the Victim Agency and

9 Law Enforcement Agency chargeable with the investigation and prosecution of the violations alleged

10 is CalPERS, as stated in Enhancement 2 of the complaint. Further CalPERS had no knowledge of

11 Defendant’s violation due to the fact that Defendant never reported his post-retirement employment

12 to CalPERS either as an employer or annuitant, as further stated in Enhancement 2. The obfuscation

13 is Defendant’s failure to report his post-retirement employment with Broadmoor PD, which he was

14 able to effectuate as the Chief of Police of Broadmoor during the time period of the time alleged.

15 Furthermore, CalPERs had received no complaints or allegation of retirement benefits fraud

16 regarding Defendant prior to Inspector Raffaelli’s contact in April 2021.

17 As the People’s complaint was filed on November 8, 2022 and the date of discovery as

18 alleged in Enhancement 2 was April 14, 2021, which then triggered the 4 year statute of limitations

19 for 487(a) PC, the commencement of prosecution well within the stature of limitations as Judge

20 Jackson found at the preliminary hearing.

21

22 II. SUFFICIENT EVIDENCE WAS PRESENTED OF JURISDICTION

23

24 “Traditionally, venue in a criminal proceeding has been set, as a general matter, in the county

25 or judicial district in which the crime was committed.” (People v. Simon (2001) 25 Cal.4th 1082,

8
1 1093; see also People v. Thomas (2012) 53 Cal.4th 1276, 1281.) Penal Code section 777 provides in

2 pertinent part: “[E]xcept as otherwise provided by law the jurisdiction of every public offense is in

3 any competent court within the jurisdictional territory of which it is committed.” “[U]nder section

4 777 the county in which a felony was committed is, in the absence of another statute, the locale

5 designated as the place for trial … .” (People v. Simon, supra, 25 Cal.4th at p. 1094.)

6 “The Legislature’s power to designate the place for trial of a criminal offense is limited by the

7 requirement that there be a reasonable relationship or nexus between the place designated for trial and

8 the commission of the offense.” (Price v. Superior Court (2001) 25 Cal.4th 1046, 1075 [upholding

9 former version of Pen. Code, § 784.7]; see also People v. Nguyen (2010) 184 Cal.App.4th 1096,

10 1109-1110 [upholding current version of Pen. Code, § 784.7]; People v. Delgado (2010) 181

11 Cal.App.4th 839, 847 [same].)

12 The primary statutory provision satisfying this requirement as to criminal conduct spanning

13 more than one California county is Penal Code section 781, which reads: “When a public offense is

14 committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof

15 constituting or requisite to the consummation of the offense occur in two or more jurisdictional

16 territories, the jurisdiction of such offense is in any competent court within either jurisdictional

17 territory.” (See People v. Posey (2004) 32 Cal.4th 193, 199-200; People v. Federico (2011) 191

18 Cal.App.4th 1418, 1425.) Penal Code section 781 has long been interpreted as a “remedial” statute

19 and has been “liberally construed.” (People v. Thomas, supra, 53 Cal.4th at p. 1283; see also People

20 v. Chapman (1977) 72 Cal.App.3d 6, 11; People v. Hernandez (1976) 63 Cal.App.3d 393, 398.)

21 Penal Code section 781 was “intended to broaden criminal jurisdiction beyond the rigid limits fixed

22 by the common law in cases of crimes committed in more than one jurisdiction.” (People v. Powell

23 (1967) 67 Cal.2d 32, 63; see also People v. Bismillah (1989) 208 Cal.App.3d 80, 85.) It should be

24 interpreted in a common sense manner with due regard to the factual circumstances of the case rather

25 than to technical niceties. (People v. Williams (1973) 36 Cal.App.3d 262, 268.)

9
1 Under Penal Code section 781 an offense may properly be prosecuted in a county in which

2 “preliminary arrangements” or “preparatory acts” for the crime are made, although the acts do not

3 constitute an essential element of the completed crime or an attempt. (People v. Thomas, supra, 53

4 Cal.4th at p. 1284; People v. Carrington (2009) 47 Cal.4th 145, 182; People v. Price (1991) 1 Cal.4th

5 324, 385; People v. Powell, supra, 67 Cal.2d at p. 62.) The conduct involved is that which necessarily

6 leads up to, or is “requisite” to, the commission of the offense. (People v. Simms (1956) 144

7 Cal.App.2d 189, 197.)

8 Also under Penal Code section 781, “[i]n addition to preparatory acts, we have also held that

9 venue can be based on the effects of preparatory acts (what we have called “preparatory effects”).”

10 (People v. Thomas, supra, 53 Cal.4th at p. 1285, italics in original.) Thus, “criminal acts occurring

11 during the commission of a single transaction may be prosecuted in any county affected by the

12 transaction, regardless of where the essential elements of any crime involved in such acts occurred.”

13 (People v. Hernandez, supra, 63 Cal.App.3d at p. 403, italics added.)

14 The evidence at preliminary clearly established that Broadmoor PD is police agency withing

15 San Mateo County and during the time periods in question, Defendant acted as the Chief-of-Police of

16 that Department. The evidence clearly established that Defendant, as Chief-of-Police, was

17 responsible for all payroll and reporting of employees to CalPERS and that he was, amongst other

18 things, specifically advised by CalPERS as an annuitant that he would have to report any future

19 employment with a CalPERS employer to CalPERS as it could affect his retirement benefits. Despite

20 that advisement, Defendant never reported his post-retirement employment to CalPERS in either

21 capacity, while also doubling his salary to receive full-time pay for part-time employment, which

22 allowed him to collect benefits to which he was not entitled and he obtained by defrauding CalPERS.

23 All of these “preparatory actions” occurred at Broadmoor PD, which is in San Mateo County and

24 thus establishes jurisdiction.

25

10
1 III. Although Not Filed in the Information, Sufficient Evidence and Case Law
Supports the Court’s Holding on the Penal Code Section 12022.6(a)
2

3 Defendant again challenges the Penal Code Section 12022.6(a) enhancement that was alleged

4 in the complaint despite the fact that said enhancement has not been filed in the Information.

5 Moreover, the basis of Defendant’s challenge is a legal challenge rather than an evidentiary one,

6 arguing that Penal Code Section 12022.6(a) is no longer a valid section as it has sunset. This is

7 Defendant’s third attack on this same issue – first in Defendant Demurrer which was denied on April

8 27, 2023 in this Court. Defendant attacked this issue a second time, at the preliminary hearing, in

9 which Judge Jackson heard arguments on the caselaw presented within the demurrer and ultimately

10 ruled that the Penal Code Section 12022.6(a) allegation could still be filed and the evidence in

11 support was sufficient (TX: 87-90.)

12 A Penal Code Section 995 motion does not appear to be the correct venue for Defendant’s

13 challenge, which would have been a writ, and does appear to be in violation of the law of the case

14 doctrine as stated in People v. Jackson (1995) 10 Cal .4th 764, 786

15 The doctrine of the law of the case is this: That where, upon an appeal, the reviewing court, in
deciding the appeal, states in its opinion a principle or rule of law necessary to the decision,
16 that principle or rule becomes the law of the case and must be adhered to throughout its
subsequent progress, both in the lower court and upon subsequent appeal, and, as here
17 assumed, in any subsequent suit for the same cause of action, and this although in its
subsequent consideration this court may be clearly of the opinion that the former decision is
18 erroneous in that particular. The principle applies to criminal as well as civil

19
However, should the Court deem to hear argument on this issue again, the People provide the
20
following points and authorities in support:
21
A. California Penal Code Section 12022.6 Remains A Valid Enhancement as It Has
22 Not Been Replaced By a Revised Subsequent Section.

23
The “excessive taking enhancement” (People v. Frederick (2006) 142 Cal.App.4th
24
400,421) or “great taking enhancement” (People v. Acosta (2014) 226 Cal.App.4th 108, 122) of Penal
25
Code section 12022.6, subdivision (a), is a provision added to the Code in 1976 as part of the
11
1 determinate sentencing law (People v. Loera (1984) 159 Cal,App,3d 992, 998.) Penal Code Section

2 12022.6, subdivision (a), was also enacted with a “sunset clause” that automatically repealed the

3 Section effective January 1, 2018, should the Legislature fail to renew it (12022.6(f)). As Section

4 12022.6 was not renewed and has not been re-enacted, it applies only to crimes committed before the

5 date of repeal. “Ordinarily when an amendment lessens the punishment for a crime, one may

6 reasonably infer the Legislature has determined imposition of a lesser punishment on offenders

7 thereafter will sufficiently serve the public interest.” (In re Pedro T. (1994) 8 Cal.4th 1041, 1045.)

8 However, this is not the case regarding a “sunset” provision. (Ibid.) If some version of the

9 enhancement were to be re-enacted and that version of the enhancement is more generous to

10 defendants than the repealed version, then it would likely be that re-enacted, less punitive version of

11 the enhancement would apply to all cases in which judgment is not final as of the date of repeal.

12 However, such not the case as of this writing.

13
While Defendant suggests that In re Estrada (1965) 63 Cal.2d 740 bars the People from
14
proceeding with the 12022.6 charge, the California Supreme Court considered the same issue and
15
came to the opposite conclusion in In re Pedro T. 8 Cal 4th 1041 (1994). In Re Pedro T., the Court
16
analyzed a sunset clause in Vehicle Code Section 10851, similar to that of Penal Code Section
17
12022.6. “In 1989 the Legislature amended Vehicle Code section 10851, effective January 1, 1990, to
18
increase the maximum punishment for vehicle theft from three years to four. The 1989
19

20 legislation provided that the lesser, pre-1990 punishment would be reinstated as of January 1, 1993,

21 unless the Legislature, before the latter date, otherwise directed. The Legislature did not so direct.

22 Accordingly, the lesser punishment was reinstated as provided in the 1989 statute.” (cites deleted, In

23 Re Pedro T. at 1044.) The Minor in In Re Pedro T. had admitted a petition in which he was charged

24 with a violation of Vehicle Code Section 10851 in 1991 (i.e. during the enhanced punishment period)

25 and was subsequently committed to the California Youth Authority (CYA), but execution of the

12
1 commitment was suspended and the minor was sentenced to probation and placed at a Youth facility.

2 The Minor then subsequently escaped and was charged with misdemeanor escape, which he admitted.

3 He was subsequently committed to CYA for 6 years and 6 months, using the 4-year maximum for

4 Vehicle Code section 10851as the base term.

5
On appeal, the Minor claimed that once the sunset provision of the 1989 statute took effect,
6
and the version of Vehicle Code section 10851 operative when the offense was committed expired
7
pursuant to its terms, the ameliorative effect of the reinstated lesser punishment inured to the benefit
8
of all persons, such as himself, whose convictions under the 1989 statute were not yet final, citing In
9
Re Estrada. Minor argued that “whenever the Legislature amends a statute to increase, for a specified
10
period, the penalty for an offense, the court, absent a saving clause, cannot apply the increased
11
penalty in a case, such as his, that arises out of an offense committed during the specified period, but
12
is not final until after the amendment expires or "sunsets." (Id. at 1045.)
13

14 However, the California Supreme Court found that Estrada was not applicable in the Minor’s

15 case, finding that the Legislature had deemed fit only to increase the penalty for vehicle theft for a

16 specified period of time. The Legislative intent when enacting a temporary sentence increase, is to

17 punish more severely, those that commit the offense during that specified time period. (Id. at 1048.)

18 The Court held that when an enhancement is abrogated in its entirety and is not replaced with a

19 version with a less severe punishment, the enhancement remains in effect for crimes committed up to

20 the date of its abrogation. “We believe the very nature of a sunset clause, as an experiment in

21 enhanced penalties, establishes- in the absence of evidence to the contrary legislative purpose- a

22 legislative intent the enhanced punishment apply to offenses committed throughout the effective

23 period.” (Id. at 1049.)

24
Here, Penal Code section 12022. 6, which the Legislature did not chose to further amend nor
25
replace, is analogous to In re Pedro T. Therefore, the enhancement remains in effect for all crimes

13
1 committed during the specified period of time, up to the date of its abrogation. Penal Code section

2 186.22, subdivision (d), is distinguishable from the facts in In re Pedro T. regarding the sunset

3 provision at issue in that case. Unlike Vehicle Code section 10851 and Penal Code section 12022.6,

4 Penal Code section 186.22(d), is not a “sunset” provision. On January 1, 2022, the Legislature

5 amended the enhancement, requiring a different standard of proof by the prosecution, a substantive

6 change in requirements. This legislative change was not for a specified period of time, but completely

7 replaced the prior standard for that Penal Code section. Therefore, this enhancement is presumptively

8 applied retroactively in the defendant’s favor. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 300.)

10
CONCLUSION
11
For the reasons stated above the People respectfully request Defendant’s Motion to Set Aside
12
the Information per Penal Code Section 995 be DENIED.
13

14

15 Dated: April 11, 2024

16 Respectfully submitted,

17
_______ ____
18 Joseph L. Cannon
Deputy District Attorney
19

20

21

22

23

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14
 PROOF OF SERVICE BY MAIL

Case No. 22-SF-013823-A

1. I am over 18 years of age and not a party to this action. I am employed in the county where
the mailing took place.

2. My main business address is:

x Office of the District Attorney O Office of the District Attorney

400 County Center, 3" Floor 400 County Center, 4" Floor
Redwood City, CA 94063 Redwood City, CA 94063

Office of the District Attorney Office of the District Attorney

1050 Mission Road 222 Paul Scannell Drive
South San Francisco, CA 94080 San Mateo, CA 94402

3. On April 11, 2024, I mailed from Redwood City, California the following documents:

OPPOSITION TO DEFENDANT'S MOTION TO SET ASIDE THE INFORMATION

PURSUANT TO PENAL CODE SECTION 995.

4. I served the documents by enclosing them in an envelope and (check one):

a. placing the envelope for collection and mailing following our ordinary
business practices. I am readily familiar with this business's practice for
collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service in a sealed envelope with
postage fully prepaid.

b. depositing the sealed envelope with the United States Postal Service with the
postage fully prepaid.

5. The envelope was addressed and mailed as follows:

Jeffrey Hayden
600 Allerton Street, Suite 201
Redwood City, CA 94063

I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.

oberto Galve

Verbage from Judicial Council Form POS-030 1/1/05