Filed 5/30/13 P. v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Petitioner,                                                     E058268

v.                                                                       (Super.Ct.No. INF1102490)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

ROBERT SALTER,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate. David B. Downing,

Judge. Petition granted.

         Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Petitioner.

         No appearance for Respondent.

         Law Offices of Rodney Lee Soda and Susanne S. Cho for Real Party in Interest.



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                                       DISCUSSION

        In this matter we have reviewed the petition and the opposition filed by real party
in interest. We have determined that resolution of the matter involves the application of
settled principles of law, and that issuance of a peremptory writ in the first instance is
therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,
178.)
        First, we do not agree with real party in interest that the People’s remedy by
appeal is adequate, and because there is the right to appeal, review by writ poses no risk
of unfair harassment. (See generally People v. Superior Court (Mitchell) (2010) 184
Cal.App.4th 451.)
        Next, insofar as the magistrate purported to make a “factual finding” that real
party is not a gang member, this was improper as the most that could be said was that the
evidence presented was insufficient. There was no affirmative evidence that real party is
not a gang member. (See People v. Superior Court (Henderson) (1986) 178 Cal.App.3d
516.) Furthermore, actual gang membership is not relevant to an allegation under Penal
Code section 186.22, subdivision (b). (People v. Miranda (2011) 192 Cal.App.4th 398.)
        Finally, we disagree that the evidence was insufficient to hold real party to answer
under the charged enhancement. The standard is “strong suspicion.” (Stark v. Superior
Court (2011) 52 Cal.4th 368, 406.) There was evidence that one or more codefendants
was an active gang member and that the victims belonged to a rival gang. The self-
exculpatory statements to the effect that the attack was not gang related are entitled to
little weight. Given that the case involves an unprovoked attack by Black gang members
on Hispanic members of a rival gang, the conclusion that the assault was gang related and
that real party intended to assist gang members is amply supported. (People v. Leon
(2008) 161 Cal.App.4th 149.)
                                       DISPOSITION
        Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of
mandate issue directing the Superior Court of Riverside County to set aside its order



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dismissing the enhancement alleged under Penal Code section 186.22, subdivision (b),
and to enter a new order denying real party’s motion to dismiss.
       Petitioner is directed to prepare and have the peremptory writ of mandate issued,
copies served, and the original filed with the clerk of this court, together with proof of
service on all parties.
       The previously ordered stay is lifted.



       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 MILLER
                                                                                             J.


We concur:


RAMIREZ
                          P. J.


KING
                             J.




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