P. v. Super. >Ct.>

 

 

 

 

 

 

 

 

 

 

 

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,   v.   THE SUPERIOR COURT OF RIVERSIDE COUNTY,               Respondent;   ROBERT SALTER,               Real Party in Interest.

E058268               (Super.Ct.No. INF1102490)               OPINION

 

            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. 

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 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.