Opinion
E072191
10-08-2019
In re JONATHAN DEWITT MCDOWELL on Habeas Corpus.
Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public Defender, for Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Seth M. Friedman and Michael P. Pulos, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. RIC1709427 SWF1500382, RIF141332) OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Ronald L. Johnson (retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Janice M. McIntyre (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Edward D. Webster (retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), and Chad W. Firetag, Judges. Petition denied.
In 2008, in Case No. SWF1500382 (2008 case), Judge Johnson presided over petitioner's trial, and Judge McIntyre sentenced him. In 2015, in Case No. RIC1709427 (2015 case), Judge Webster presided over petitioner's trial and sentenced him. In 2018, in Case No. RIF1709427 (2018 case), Judge Firetag denied petitioner's habeas petition in the trial court.
REQUEST FOR JUDICIAL NOTICE. Granted. Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public Defender, for Petitioner. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Seth M. Friedman and Michael P. Pulos, Deputy Attorneys General, for Respondent.
In 2012, in People v. Rodriguez (2012) 55 Cal.4th 1125, the Supreme Court held that the crime of active gang participation (Pen. Code, § 186.22, subd. (a)) is not committed by a gang member who commits a felony alone. In 2015, in People v. Velasco (2015) 235 Cal.App.4th 66, one of our sister courts of appeal held that this crime is not committed by a gang member who commits a felony with a member of another gang.
In this habeas proceeding, petitioner Jonathan Dewitt McDowell seeks to annul his conviction of active gang participation in 2008, on the ground that there was no evidence that he committed a felony with a member of his own gang. By doing so, he also seeks to annul true findings in 2015 on various enhancements based on the 2008 conviction.
We will hold that the habeas petition is untimely. Even assuming that petitioner could not have filed any earlier than 2015, when Velasco was decided, he has failed to explain his delay of over two years after Velasco. Separately and alternatively, we will also hold that the factual premise of petitioner's claim is mistaken. The 2015 enhancements were not based on his 2008 conviction for active gang participation, but rather on his 2008 conviction for sale of a controlled substance, with a gang enhancement (Pen. Code, § 186.22, subd. (b)). Rodriguez and Velasco do not apply to a gang enhancement.
I
REQUEST FOR JUDICIAL NOTICE
In a footnote in their answer, the People have asked us to take judicial notice of our files in petitioner's previous appeals, People v. McDowell, case No. E046920, and People v. McDowell, case No. E064587. This request should have been made by way of a separate motion. (Cal. Rules of Court, rules 8.252(a)(1), 8.386(a) & (e).) Petitioner, however, has not objected to the request and does not appear to be prejudiced by the People's procedural peccadillo. Hence, we grant the request. (Evid. Code, §§ 452, subd. (d)(1), 459.)
II
FACTUAL BACKGROUND
The evidence in the 2008 case showed the following.
Petitioner and two women were sitting in the carport area of an apartment complex in Moreno Valley. A confidential informant approached petitioner and said, "Can I get a dub?" A "dub" is a rock of cocaine.
Petitioner said, "Go get it from [my] sister," motioning toward the women. The informant walked over to one of the women and asked for drugs. She then gave him 0.35 grams of cocaine. A drug expert testified that it is common for a drug dealer to have a woman or a juvenile hold the drugs.
Petitioner was a member of the Unknown Mafia Gang, a clique of the "higher-ups" in a larger gang called Sex Cash Money. The drug sale took place on Sex Cash Money turf. A gang expert testified, in hypothetical form, that petitioner's drug sale benefited his gang.
Chris Thomas, a member of the South Side Compton Crips, helped petitioner make the sale by acting as a lookout.
III
PROCEDURAL BACKGROUND
In the 2008 case, petitioner was found guilty on two counts:
Count 1: Sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), with a gang enhancement (Pen. Code, § 186.22, subd. (b)).
Count 2: Active gang participation (Pen. Code, § 186.22, subd. (a)).
He was sentenced to a total of six years eight months in prison.
Petitioner appealed to this court. He did not argue insufficiency of the evidence. We modified the sentence, based on Penal Code section 654, but otherwise we affirmed.
By July 28, 2013, petitioner had served his time and was no longer in custody or on parole.
In the 2015 case, petitioner was charged with making a criminal threat. (Pen. Code, § 422.) His prior conviction on count 1 in the 2008 case was alleged as a strike prior (Pen. Code, §§ 667, subd. (b)-(i), 1170.12) and a prior serious felony conviction enhancement (Pen. Code, § 667, subd. (a)). A jury found petitioner guilty of the charged offense. In a bifurcated proceeding, it also found the prior conviction allegations to be true.
As we discuss in part VI, post, the parties mistakenly believe these enhancements were based on the prior conviction on count 2.
The same prior was also alleged as a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), but the trial court struck this enhancement at sentencing.
Petitioner was sentenced to prison for a total of 12 years. This included the doubling of the principal term based on the strike prior and an additional five year term based on the prior serious felony conviction enhancement.
Once again, petitioner appealed to this court. He did not challenge the enhancements. We affirmed.
In 2017, petitioner filed a habeas petition in the trial court, alleging that, in hindsight, under Rodriguez, there had been insufficient evidence to support the gang findings in the 2008 case.
In 2018, the trial court denied the petition. Petitioner sought review by filing a habeas petition in this court, but we denied it summarily.
Petitioner then sought review by filing a habeas petition in the Supreme Court. The Supreme Court issued an order to show cause, returnable before this court.
IV
THE EFFECT OF THE SUPREME COURT'S ORDER TO SHOW CAUSE
"In issuing an order to show cause in . . . a [habeas] proceeding, a court makes 'an implicit preliminary determination' as to claims within the order that the petitioner has carried his burden of allegation, that is, that he 'has made a sufficient prima facie statement of specific facts which, if established, entitle him to . . . relief . . . .' [Citation.] That determination, it must be emphasized, is truly 'preliminary': it is only initial and tentative, and not final and binding." (In re Sassounian (1995) 9 Cal.4th 535, 547.)
"[The Supreme Court's] direction to an appellate court to issue an order to show cause why the relief sought in the petition should not be granted does not . . . establish a prima facie determination that petitioner is entitled to the relief requested. Rather, it signifies [its] 'preliminary determination that the petitioner has made a prima facie statement of specific facts which, if established, entitle [petitioner] to habeas corpus relief under existing law.' [Citations.]" (In re Serrano (1995) 10 Cal.4th 447, 454-455.) More specifically, the issuance of an order to show cause represents "a preliminary determination that [the petitioner] has proceeded in a timely manner. [Citation.]" (In re Morrall (2002) 102 Cal.App.4th 280, 286, fn. 1.)
"[W]hen the Supreme Court, in response to a habeas corpus petition, issues an order to show cause returnable before a lower court, the lower court must decide the issues before it on their merits. . . . It is not, however, the equivalent of a final appellate decision on questions of law, nor does it constitute law of the case. [Citation.]" (In re Orosco (1978) 82 Cal.App.3d 924, 927; accord, Hudson v. Superior Court (2017) 7 Cal.App.5th 1165, 1170, fn. 4.)
For completeness' sake, we note that, at least in mandate cases, the issuance of an order to show cause "necessarily" determines that appeal is not an adequate remedy. (See Langford v. Superior Court (1987) 43 Cal.3d 21, 27 [issuance of alternative writ].) Accordingly, again in mandate cases, this court and other courts have said that "issuance of the order to show cause operates as a conclusive finding that the remedy by way of appeal would not be adequate. [Citation.]" (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 99, fn. 5; accord, People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567, 572; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488.) Assuming such cases apply in a habeas proceeding at all, the Supreme Court's issuance of an order to show cause conclusively determines only the inadequacy of other remedies, not the timeliness of the petition nor the existence of any other procedural bar. (Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939.)
V
THE TIMELINESS OF THE PETITION
The People assert the following procedural bars: (1) petitioner is not in custody on the 2008 conviction; (2) petitioner could have raised his claim on direct appeal; (3) a sufficiency of the evidence claim is not cognizable on habeas; and (4) the petition is untimely.
In part VI, post, we consider (in a limited way) the assertion that petitioner is not in custody on the 2008 conviction. Otherwise, while we have not considered these procedural bars in depth and we express no holding with respect to them, they strike us as weak — with the exception of untimeliness.
"A criminal defendant mounting a collateral attack on a final judgment of conviction must do so in a timely manner. [Citation.] Thus, a petitioner is required to explain and justify any significant delay in seeking habeas corpus relief. [Citation.] An unjustified delay in presenting a claim bars consideration of the merits. [Citations.]" (In re Sims (2018) 27 Cal.App.5th 195, 204-205.)
"[T]he petitioner has the burden of establishing (i) absence of substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an exception to the bar of untimeliness. [¶] Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. A petitioner must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time." (In re Robbins (1998) 18 Cal.4th 770, 780.)
Here, the petition contains no such allegations. Petitioner may be forgiven for not bringing his claim before March 13, 2015, when Velasco was published. However, he did not file his first habeas petition, in the superior court, until May 17, 2017 — more than two years later. His petition does not explain this delay.
When, as here, a habeas petition is based on a case that announced new law, some courts measure delay from the time when either a petition for certiorari in the United States Supreme Court is denied, or the time to file such a petition expired. (In re Taylor (2019) 34 Cal.App.5th 543, 555-556; In re Lucero (2011) 200 Cal.App.4th 38, 44.)
We see no justification for this approach. It is purportedly derived from cases dealing with whether a conviction is final for statutory retroactivity purposes. (In re Lucero, supra, at p. 44, citing Linkletter v. Walker (1965) 381 U.S. 618, 622, fn. 5, and People v. Vieira (2005) 35 Cal.4th 264, 306.) At issue here, however, is the finality of an opinion, not the finality of a conviction. Indeed, as soon as an opinion is published — i.e., even before it becomes final — it can be cited (Cal. Rules of Court, rule 8.1115(d)), and thus it serves as notice of the need to file a prompt habeas petition.
Finally, even assuming the certiorari process is relevant, the California Supreme Court denied review in Velasco on July 15, 2015. (People v. Velasco (July 15, 2015, S225933) 2015 Cal. LEXIS 4959.) No petition for certiorari was filed. Thus, the time to file a petition for certiorari expired on October 13, 2015. (U.S. Sup. Ct. R. 13(1), (3).) This would still leave a delay of over a year and a half to be explained.
The same is true of his petition in the superior court and his previous petition in this court.
Petitioner nevertheless argues that his petition was timely, for three reasons.
First, he argues: "A two year delay is not substantial, especially considering that Mr. McDowell was pro per." A habeas petition, however, "should be filed as promptly as the circumstances allow, and the petitioner 'must point to particular circumstances sufficient to justify substantial delay . . . .' [Citation.]" (In re Clark (1993) 5 Cal.4th 750, 765, fn. 5.) In People v. Miller (1992) 6 Cal.App.4th 873, we held that a delay of approximately two years (from "late 1988" to October 1990) was substantial, in part because the petitioner could have filed in pro per instead of waiting to obtain counsel. (Id. at pp. 882-883.) Here, petitioner was in pro per when he filed his first petition in the superior court. He has not alleged when or how he became aware of his legal claim. Thus, he has not specifically alleged that his pro per status prevented him from filing sooner.
Second, petitioner argues that there was good cause for the delay, in that his trial and appellate counsel in the 2015 case were ineffective because they failed to challenge the enhancements that were based on the 2008 conviction. This might arguably explain his counsel's failure to file a habeas petition, but it does not explain petitioner's own delay in filing a habeas petition in pro per (as he eventually did).
Third, petitioner argues that he is within one of several exceptions to the timeliness requirement.
He cites the exception "that the petitioner is actually innocent of the crime or crimes of which he or she was convicted." (In re Sims, supra, 27 Cal.App.5th at p. 205.) However, there is a recognized distinction between actual innocence and mere insufficiency of the evidence to prove guilt. (See House v. Bell (2006) 547 U.S. 518, 538.) Here, petitioner merely claims that the prosecution failed to prove the crime of active gang participation; he does not offer to prove that he was actually innocent of this crime.
He also cites the exception "that the petitioner was convicted or sentenced under an invalid statute." (In re Sims, supra, 27 Cal.App.5th at p. 205.) He concedes that that is not what happened here; he argues, however, that "he was convicted under an invalid interpretation of a statute, which as a practical matter amounted to the same thing." It is not the same thing at all. A petitioner claiming to have been convicted under an invalid statute is essentially claiming actual innocence — i.e., he or she did not commit any crime. Moreover, such a claim implicates the principle that a judgment that is void on the face of the record may be set aside at any time. (People v. Amaya (2015) 239 Cal.App.4th 379, 386.) These two points explain why a claim of conviction under an invalid statute might be exempt from the timeliness requirement. But they do not apply to a claim that the evidence at trial was insufficient to satisfy a statute.
We have traced the invalid statute exception back to In re Clark, supra, 5 Cal.4th at pages 759, 798. Clark, however, cited no authority for it and did not actually apply it; indeed, our research has not revealed any other case that applied it.
Finally, petitioner argues that "[i]t would . . . be a 'fundamental miscarriage of justice'" to require him to serve time on enhancements that are based on an "invalid" conviction. Our Supreme Court has emphasized, however, that a mere miscarriage of justice — in the sense of a prejudicial error — is insufficient to excuse the timeliness requirement. (In re Clark, supra, 5 Cal.4th at p. 795.) Rather, a petitioner must show a fundamental miscarriage of justice, which the court defined in terms of certain specific exceptions. (Id. at pp. 759, 797-798.) Petitioner has not made out any of these exceptions.
We therefore conclude that the petition is untimely.
VI
THE 2008 CONVICTION FOR ACTIVE GANG PARTICIPATION
Petitioner's claim is that there was insufficient evidence to support his conviction in the 2008 case for active gang participation, because there was no evidence that he acted with a member of his gang.
"Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang" is guilty of active gang participation. (Pen. Code, § 186.22, subd. (a), italics added.)
Petitioner was convicted of this crime in 2008. Later, in 2012, in Rodriguez, our Supreme Court held that this crime "require[es] that a person commit an underlying felony with at least one other gang member" (People v. Rodriguez, supra, 55 Cal.4th at p. 1134); a person who commits the underlying felony alone is not guilty. (Id. at pp. 1128, 1135, 1139.)
Still later, in 2015, Velasco added a gloss to Rodriguez. It held that the crime of active gang participation requires the commission of an underlying felony with at least one other member of one's own gang; the commission of a felony with a member of another gang will not support a conviction. (People v. Velasco, supra, 235 Cal.App.4th at pp. 68, 75-78.)
Accordingly, petitioner argues that, in the 2008 case, there was no evidence that he committed a felony with a member of his own gang. He was assisted by an unidentified woman, but there was no evidence that she was a member of his gang. And he was assisted by Chris Thomas, but Thomas was a member of a different gang.
We need not decide this issue, however, because petitioner is no longer in custody on his 2008 conviction for active gang participation. "Our courts have no power to provide habeas corpus relief to a person who is not in actual or constructive custody. [Citations.]" (L.A. v. Superior Court (2012) 209 Cal.App.4th 976, 980; accord, People v. Villa (2009) 45 Cal.4th 1063, 1068-1069.)
Petitioner argues that he is, in fact, in custody — he is serving time on enhancements in the 2015 case that were based on the prior conviction for active gang participation in the 2008 case, and therefore he can use habeas to challenge that prior conviction. Alternatively, he also argues that in the 2015 case, both his trial and appellate counsel rendered ineffective assistance of counsel by failing to challenge the prior conviction enhancements based on Rodriguez and Velasco.
The hole in this argument is that the enhancements were based on count 1, not count 2, in the 2008 case.
Both count 1 — because of the gang enhancement — and count 2 qualified as serious felonies for enhancement purposes. (Pen. Code, §§ 667, subds. (a)(1), (a)(4), (d)(1), 1192.7, subd. (c)(28); People v. Briceno (2004) 34 Cal.4th 451, 459-465.)
The information in the 2015 case alleged a prior conviction for "[t]ransportation/sale of a controlled substance for criminal street gang activity, a felony, in violation of Health and Safety Code section 11352, subdivision (a), with 186.22, subdivision (a), of the Penal Code . . . ." (Capitalization altered.) Admittedly, this was somewhat ambiguous. If forced to choose, we would conclude that it referred to count 1, because if it referred to count 2, there would be no need to mention the transportation or sale of a controlled substance, nor to cite Health and Safety Code section 11352; on that view, the citation of subdivision (a), instead of subdivision (b), of Penal Code section 186.22 was just a typo.
Rather than rely solely on our own judgment, however, we have taken judicial notice of our records in petitioner's appeal from his 2015 conviction. (See part I, ante.) The reporter's transcript of the jury trial on the prior conviction allegations confirms that they were actually based on count 1.
For example, the trial court instructed the jury, "It's . . . alleged that that the defendant was convicted on or about November 21st, 2008, of sales of a controlled substance for a criminal street gang. A violation of Health and Safety Code section 11352, subdivision (a), with a 186.22 gang allegation." Likewise, the prosecutor told the jury, "When you get to the deliberation room, turn to the very first conviction for an 11352(a) of the Health and Safety Code with a gang conviction."
The definition of the gang enhancement is different from the definition of the crime of active gang participation. The enhancement applies to "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . ." (Pen. Code, § 186.22, subd. (b).)
Rodriguez construed Penal Code section 186.22, subdivision (a). It relied, in particular, on the language in that subdivision requiring that the defendant "willfully promote[], further[], or assist[] in . . . criminal conduct by [gang] members . . . ." (People v. Rodriguez, supra, 55 Cal.4th at p. 1132.)
By contrast, Penal Code section 186.22, subdivision (b), merely requires that the defendant "inten[d] to promote, further, or assist in any criminal conduct by gang members . . . ." (Italics added.) A gang member can commit a felony alone with the specific intent to promote criminal conduct by other gang members. (E.g., Studebaker v. Uribe (C.D. Cal. 2009) 658 F.Supp.2d 1102, 1121-1122.) Moreover, a gang member can commit a felony alone to benefit his or her gang. (E.g., People v. Jasso (2012) 211 Cal.App.4th 1354, 1376-1377.) Hence, "the holding in Rodriguez — that a lone actor cannot violate section 186.22, subdivision (a) — does not apply to the separate enhancement set forth in section 186.22, subdivision (b) . . . ." (People v. Rios (2013) 222 Cal.App.4th 542, 546; see also People v. Perez (2017) 18 Cal.App.5th 598, 607 ["[A] lone actor is subject to a gang enhancement . . . ."].)
Petitioner does not argue that there was insufficient evidence to support the gang enhancement. Thus, he has forfeited this argument. If he did raise it, he would have an even bigger untimeliness problem (see part V, ante), because he could have raised this particular argument even before the decisions in Rodriguez and Velasco.
VII
DISPOSITION
The order to show cause is discharged and the habeas petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: FIELDS
J.
Slough, J., Concurring.
I write separately because I disagree with the primary holding of the majority opinion. In my view, McDowell's petition is timely.
A habeas corpus petitioner must show they have not "substantial[ly] delay[ed]" in bringing their petition. (In re Robbins (1998) 18 Cal.4th 770, 780.) "Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of . . . the legal basis for the claim." (Ibid.; see In re Wells (1967) 67 Cal.2d 873, 875 [delay of 19 years was inexcusable]; People v. Jackson (1973) 10 Cal.3d 265, 268 [11-year delay was inexcusable].)
In this case, McDowell filed his petition in May 2017, about two years after the publication of People v. Velasco (2015) 235 Cal.App.4th 66 (Velasco), one of the cases on which he bases his claim for relief. Given that he is an indigent, unsophisticated state prisoner who was unrepresented when he filed his petition, and given that his claim is based on a new development in the law (as opposed to newly discovered facts), two years does not constitute a substantial delay. (See, e.g., In re Saunders (1970) 2 Cal.3d 1033, 1040-1041 [five-year delay was excusable where the unrepresented petitioner "had only a ninth grade education and was without experience or education in law"].)
The majority do not address this established case law and instead support their conclusion that two years is too long with an earlier opinion from this court, People v. Miller (1992) 6 Cal.App.4th 873. (Maj. opn. ante, at p. 9.) Miller involved unique circumstances not present here. The petitioner was a medical doctor who had completed two years of law school. (Miller, at p. 883.) After he learned of the legal basis for habeas relief, he spent an additional two years looking for an attorney to file his petition. (Ibid.) In finding the petition untimely, we emphasized the fact he was not the typical prisoner seeking habeas relief, but rather a sophisticated professional with a background in the law. We held that, given his circumstances, he should have filed the petition on his own behalf rather than spend significant time to obtain an attorney. (Ibid.) In my view, those facts are a far cry from what we have here, and it strikes me as unfair to treat the two cases in the same way. Unlike the petitioner in Miller, McDowell is not a professional and has no legal education. We therefore have no reason to except him from the case law allowing indigent prisoners more time to bring habeas petitions based on new law. (E.g., In re Bartlett (1971) 15 Cal.App.3d 176, 185 [in excusing a two-year delay, court refused to "make the somewhat rash assumption that, as a layman imprisoned in a state penitentiary," the petitioner closely followed emerging case law].) In addition, the evidence in Miller revealed the petitioner was aware of his legal claim for two years before he sought habeas relief, whereas in this case there is no reason to think McDowell knew about Velasco but put off filing his petition.
I find our facts more like In re Huddleston (1969) 71 Cal.2d 1031, where our Supreme Court excused a delay of two and a half years because the petitioner's claim, like McDowell's, was based on a change in the case law. (Id. at p. 1034.) As the Court reminded the Attorney General who had raised the timing issue, "the basic function of habeas corpus is to afford relief which cannot otherwise be procured," and, "in any event, [the petitioner's] delay primarily worked to his own disadvantage," not the People's. (Ibid.) Given that we have consistently regarded the habeas petition as "'the safe-guard and the palladium of our liberties'" (e.g., In re Clark (1993) 5 Cal.4th 750, 764), the majority's conclusion that two years is too long for an unrepresented prisoner to discover a change in the law and file a habeas petition appears overly strict and inconsistent with the bulk of case law.
I also note the majority's holding is based on their conclusion that McDowell's petition was insufficient for failing to allege why it took him two years after Velasco to file it. (See Maj. opn. ante, at p. 8 ["Here, the petition contains no such allegations" to excuse the two-year delay]; see also id. at p. 10 [the petition does not "allege[] when or how [McDowell] became aware of his legal claim"].) I doubt that conclusion is appropriate in a case like this, where the California Supreme Court has ordered respondent (the Warden of the Kern Valley State Prison) to show cause, in this court, why McDowell should not obtain the relief he seeks in light of People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez) and Velasco. An order to show cause represents a preliminary determination that the petition "is sufficient on its face (that is, the petition states a prima facie case on a claim that is not procedurally barred)." (People v. Romero (1994) 8 Cal.4th 728, 737.) Thus, in issuing an order to show cause returnable to this court, the California Supreme Court has "signifie[d its] 'preliminary determination that [McDowell] has made a prima facie statement of specific facts which, if established, entitle [him] to habeas corpus relief under existing law.'" (In re Serrano (1995) 10 Cal.4th 447, 455 (Serrano), citing In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4.)
McDowell's petition before the California Supreme Court—the same petition before us now—alleged that Rodriquez and Velasco entitle him to relief and that he filed his original habeas petition on May 17, 2017. In other words, the Court was aware of the approximately two-year lapse between Velasco and the petition's filing and, by ordering respondent to show cause, preliminarily determined, among other things, that there had not been a substantial delay in this case. (See, e.g., In re Morrall (2002) 102 Cal.App.4th 280, 286, fn. 1 ["In issuing an order to show cause, we made a preliminary determination that [petitioner] has proceeded in a timely manner"], citing Serrano, supra, 10 Cal.4th at p. 455.)
I recognize that the Court's order to show cause does not constitute a decision on the merits of McDowell's claim for relief nor does it direct us how to resolve whatever factual disputes may arise when the petition, return, and traverse are joined. However, the order does constitute a preliminary determination that McDowell's petition has sufficiently alleged facts which, if true, "entitle [him] to habeas corpus relief." (In re Hochberg, supra, 2 Cal.3d at p. 875, fn. 4.) Had respondent alleged facts in the return that raised doubt about whether McDowell's timing allegations were true, then the issue would be in dispute and we would have to resolve it. But here, respondent's return does not allege any new or different facts on the issue of delay. Instead, respondent simply argues we should consider the delay substantial. It seems to me that by accepting that argument and concluding McDowell's petition insufficiently explains the time it took him to file, my colleagues have disregarded the Court's preliminary determination that the petition states a prima facie case for relief.
Turning to the merits of the petition, however, I agree with the majority's alternate holding that McDowell is not entitled to relief. But I do so with some hesitation. In his briefing, McDowell argues Rodriguez and Velasco require us to vacate his 2008 conviction for active gang participation (Pen. Code, § 186.22, subd. (a)) and modify his 2015 sentence to the extent it was enhanced based on that conviction constituting a prior strike. In their briefing, the People argue that Rodriguez held only that active gang participation cannot be committed by gang members who were acting alone. They acknowledge Velasco took that holding a step further to conclude active gang participation cannot be committed by offenders, like McDowell, who were acting with a member of another gang. Their merits position is that Velasco was wrongly decided and we should decline to follow it.
The majority does not reach this issue because they conclude the parties are operating from a false premise. They reviewed the record in McDowell's 2015 case and determined that his prior strike was not in fact based on his 2008 conviction for active gang participation (Pen. Code, § 186.22, subd. (a))—as everyone, including the superior court, had assumed until now. Rather, they determined his prior strike was actually based on his 2008 conviction for sale or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) with a gang enhancement (Pen. Code, § 186.22, subd. (b)). (Maj. opn. ante, at pp. 12-15.) Specifically, they conclude the citations to Penal Code section 186.22, subdivision (a) in the information, jury instructions, and jury findings are typographical errors and were instead intended to refer to Penal Code section 186.22, subdivision (b). And, because Rodriguez and Velasco apply only to the offense of active gang participation and not to gang enhancements, they conclude McDowell's petition fails on the merits. (See People v. Rios (2013) 222 Cal.App.4th 542, 546 ["the holding in Rodriguez—that a lone actor cannot violate section 186.22, subdivision (a)—does not apply to the separate enhancement set forth in section 186.22, subdivision (b)"].)
The problem is, the parties did not raise or brief this issue at any point in the habeas proceedings before us, the superior court, or the California Supreme Court, and reaching it required us to judicially notice the record in McDowell's 2015 case. As a result, I would have sought supplemental briefing from the parties so we could reach our decision with the benefit of their arguments. (Gov. Code, § 68081.) Given this court's practice of issuing tentative opinions, however, the parties were at least able to respond to our conclusion, in a limited fashion, at oral argument. But that opportunity is no substitute for written briefs, especially where our conclusion depends on a careful review of the record from a prior case. The purpose of the Government Code's supplemental briefing provision is "to assure that the parties have the opportunity to present relevant argument to the court based on a fair understanding of the facts and issues which will serve as the foundation for the court's decision." (Schneider v. Kaiser Foundation Hospitals (1989) 215 Cal.App.3d 1311, 1315, fn. 2.) The provision helps to avoid error and, in cases like this, ensure we are not denying prisoners relief to which they are entitled.
However, having reviewed the 2015 record in light of the parties' contentions at oral argument, I agree with my colleagues that the references to Penal Code section 186.22, subdivision (a) in the information, jury instructions, and jury verdict are typographical errors. Viewed in context, I am comfortable concluding that both the prosecution and the court meant to refer to Penal Code section 186.22, subdivision (b) as the basis of the prior serious strike allegation. I find especially relevant (i) the pretrial colloquy in which the court explicitly told McDowell that the allegation was based on his 2008 drug conviction with a gang enhancement, not on his 2008 conviction for active gang participation and (ii) defense counsel's closing argument, in which he described the People's prior strike allegation as "[a] violation of Health and Safety Code section 11352, subdivision (a), with a 186.22 gang allegation." If, however, the public defender believes we have missed or misunderstood something, he retains the right to file a petition for rehearing.
With these reservations, I concur in the judgment and join all but part V of the majority opinion.
SLOUGH
J.