Opinion
E074306
06-12-2020
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; VINCENT AGUILAR et al., Real Parties in Interest.
Michael A. Hestrin, District Attorney and Emily R. Hanks, Deputy District Attorney, for Petitioner. No appearance for Respondent. Law office of Meghan Blanco and Meghan Blanco for Real Party in Interest, Aguilar. Maline Law Group and Rajan Maline for Real Party in Interest, Ortega.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIF1990237) OPINION ORIGINAL PROCEEDING; petition for writ of mandate. Eric A. Keen, Judge. Petition granted. Michael A. Hestrin, District Attorney and Emily R. Hanks, Deputy District Attorney, for Petitioner. No appearance for Respondent. Law office of Meghan Blanco and Meghan Blanco for Real Party in Interest, Aguilar. Maline Law Group and Rajan Maline for Real Party in Interest, Ortega.
Defendants, Vincent Aguilar and Gabriel Ortega, both active members of the Casa Blanca Rifa gang, were charged with committing the first degree murder of a fellow gang member. The prosecution sought to enhance their punishment on the theory this was a gang killing. (Pen. Code § 186.22, subd. (b)(1)(C); statutory citations refer to this code.)
At the preliminary hearing, the prosecution didn't put on any of the usual evidence of the defendants displaying or announcing their gang affiliation during the crime. Nor did they put on evidence that would tend to show the crime was committed for the purpose of advancing the gang's interests. However, a gang expert did testify that Aguilar and Ortega had acted in concert and with the assistance of a gang associate to hunt the victim down in the gang's territory and shoot him. He also testified that, in general, violence by members of a gang within their territory may have the effect of causing others to fear and respect the gang and, when the violence is directed against another member of the same gang, may have the effect of enforcing discipline in other gang members.
The preliminary hearing magistrate held the defendants to answer for the murder but held the prosecution had not established a reasonable basis for holding them over to answer for the gang enhancement allegations. The prosecution nevertheless filed the gang enhancement allegations against both defendants. Aguilar and Ortega moved to dismiss the gang enhancements, and the trial court granted their motion. The People filed a petition for writ of mandate, a petition for writ of prohibition, and asked for an immediate stay of the trial pending resolution of their petitions.
We granted the stay, and now grant the petition for writ of mandate because the evidence presented at the preliminary hearing was sufficient to raise a reasonable possibility defendants committed the murder "in association with" their gang, though it was not sufficient to raise a reasonable possibility defendants committed the murder for the benefit of the gang.
I
FACTS
A. The Shooting and Investigation
On June 25, 2017, around 9:15 p.m., Gabriel Cruz was shot to death at a gas station on Indiana Street in Riverside. The surveillance camera that captured the shooting showed Cruz working on his bike near the air and water pumps. A light-colored, four-door sedan pulled into the parking lot and a passenger got out of the right front seat, walked around the back, and approached Cruz. Cruz stood up and the passenger shot him. Cruz collapsed to the pavement. The shooter returned to the car, which quickly left the scene. The video footage was not clear, but it showed a distinctive, large, shallow dent in the driver's side front quarter panel of the car.
When police arrived, the victim's girlfriend was present. She said she had left the gas station on foot just minutes before the shooting. She said a white SUV pulled up when she was about a block or two away. She identified Aguilar as a passenger and, though she didn't know him, her description of the driver matched Ortega. Ortega asked her where Cruz was, and she directed him to the gas station.
At that point, she said, both Aguilar and Ortega got out of the SUV and approached a silver sedan nearby. A woman in the right front passenger seat moved from the sedan to the white SUV and drove off. Aguilar got into the sedan's right front passenger seat and Ortega got in the back. A light skinned Latinx woman who matched a description of Ortega's girlfriend drove the sedan. They drove off in the direction of the gas station. Within a few minutes, Cruz's girlfriend said she heard gunshots. Fearing the worst, she hurried back to the gas station and found Cruz on the ground with multiple gunshot wounds.
Police later identified the SUV as belonging to Ortega and the sedan as belonging to his girlfriend. Law enforcement obtained approval for a wiretap on the phones of Aguilar, Ortega, and Ortega's girlfriend. In the intercepted phone calls, Aguilar and Ortega discussed gang business and getting rid of guns involved in crimes. Law enforcement also seized the murder weapon at a home in Las Vegas, Nevada, where Ortega had been staying with his mother and her boyfriend.
Cruz later died from the gunshot wounds.
B. The Gang Expert's Testimony
Detective Joshua Ontko testified at the preliminary hearing as a prosecution gang expert. He described the Casa Blanca Rifa gang, its turf, cliques, and geographic divisions. He focused on the Evans Street clique of the gang, which has two sub- groups—the Diablos and the Devil Wolves. Among other things, he described the gang's pattern of criminal activity.
Detective Ontko told the court both Aguilar and Ortega were active members of the Evans Street clique of the gang and that Aguilar was an authority and decision-maker. Aguilar had admitted membership in the gang by self-registering with the police and had gang tattoos identifying him as a member of the Diablos. Ortega also admitted being a gang member, had tattoos indicating membership, associated with other gang members, and owned clothing and paraphernalia indicative of his membership. Moreover, after the shooting, police got approval to intercept phone calls between the two, and Ontko heard them discuss gang business. Ontko said it was his opinion that Ortega's girlfriend was an "associate" of the gang. He also said the victim was a member of the Evans Street clique of Casa Blanca Rifa, like both defendants.
Relevant to this appeal, Detective Ontko told the court he was willing to say the shooting was committed in association with the gang, but not that it was for the benefit of the gang. On direct examination he said, "The association is real strong. Obviously, we have two gang members committing a homicide together, so the association is probably the strongest part of this. The benefit of, I have some pretty strong opinions as to how it benefited the gang, but it's just that, just opinions at this point."
Defense counsel asked him whether his opinion was "based on anything more than your belief that two members of the gang were involved in the killing." He responded, "Based on the facts that I was given, that is all I was comfortable saying." The court asked for clarification whether he believed "any time that a crime or killing . . . is committed by two members of a gang, that means that it was done in association with a criminal street gang?" He agreed it does. But, as he later acknowledged, he didn't feel confident forming an opinion that they committed the crime for the benefit of the gang. "I said based on the facts presented to me, yes, I would have a difficult time coming up here and drawing that opinion."
On redirect, after a break, Ontko changed his opinion. The prosecution asked him to "[t]ell us how it is that when two gang members kill somebody inside of gang territory, how that benefits the gang?" He responded, "It benefits them in two ways. The main way is that [it] strikes that fear we talked about into the community, and reinforces with the community what would—could happen to you if you cooperate with law enforcement. Also bolsters the gang's actual reputation to show to what level that gang is able and willing to go to and kind of—that resonates with rival members."
The court didn't understand why Detective Ontko changed his opinion that the shooting was for the benefit of the gang and questioned him further on this point.
The Court I don't understand that. I can see where that might be the case if the killing were done with some gang objective in mind, but just the killing—any killing would always further—would always been in benefit of the gang?
Witness In this specific case, we have a victim who is a Devil Wolf -
The Court Victim was a Devil Wolf, the alleged perpetrators of the crime are one a Devil Wolf and one a - one a Diablo, and how does the killing of a victim in this particular case benefit anybody?
Witness Well, for example, to - for them to be able to continue their criminal activity, they have to have a certain level of fear built into the neighborhood.
The Court Sure. So any time a member of a gang kills anyone in the neighborhood, that would be for the benefit of the gang? [¶] . . . [¶] Doesn't matter what reason the person was killed for?
Witness I think within the neighborhood, most definitely. The further you get out from the neighborhood, I would tend to agree with you. If he goes and kills somebody in North Carolina, that's not really going to have an impact. When you are killing someone - not just someone, but someone from the neighborhood, from the gang, within the neighborhood -
The Court That benefits the gang?
Witness Definitely benefits the gang.
On recross-examination, defense counsel pressed him to explain the change in his testimony.
Q. And at that time, just this morning, you said you did not have enough information and did not feel confident forming an opinion that that would have been for the benefit of a criminal street gang. Do you remember that?
A. I said based on the facts presented to me, yes, I would have a difficult time coming up here and drawing that opinion.
Q. And then we take a break.
A. Correct.
Q. And we broke for maybe 15 or 20 minutes and you resumed the stand. And now your opinion is that that hypothetical, the facts presented to you in that hypothetical, if taken as true, are enough for you to form the opinion that that shooting would have been for the benefit of a criminal street gang?
A. On redirect, he added the facts of whether that homicide was committed in the territory of a gang. And I - that definitely changes it.The defense questioned whether the shooting having occurred in the gang territory wasn't included in the prosecutor's original hypothetical, and Ontko didn't contest that it was.
At that point, the court again questioned the witness and he said his opinion was that the shooting had the effect of benefiting the gang but not that it was done for the purpose of benefiting the gang.
The Court Here is what I'm trying to get at, and I have heard what you said. Seems to me you say - the question is whether it was done for the benefit [of the gang]. Okay? You said it had - in your opinion, it had the effect of benefiting the gang because any killing by a gang member in the neighborhood instills fear in the neighborhood, and to that extent, benefits the gang; right?
Witness Correct.
The Court That is your testimony. You are not saying, are you, that this killing was done for that purpose? It may have had that effect, but you're not saying it was done in order to instill fear of the gang; are you?
Witness Not on the stand. But if you read my - especially my wire affidavit, I make a strong opinion for the fact that -
The Court The question is: What is your opinion here? That is what you were asked by the attorneys.
Witness To answer that question here on the stand, based on what is allowed in the Rules of Court, then, yes, your Honor, the effect was it benefited the gang.
After further questioning by the attorneys, the court again sought clarification as to Ontko's opinion.
The Court When one gang member kills another gang member, there may be any number of purposes; right? Some may be gang related, some may not be gang related. Or are you assuming that every act that a gang member does is gang related?
Witness I would never assume that every act a gang member does is gang related. I just know that certain facts can help support that when a gang member acts, it could be gang related. And one of those important facts, it's a pretty monumental event when they kill one of their own, and there is a reason behind that. Me, as an expert, may not always know the reason behind that, but I can form an opinion that by killing one, they are definitely sending a message, whether it be throughout their gang or the community or both. That message is loud and clear.
C. The Magistrate Ruling at the Preliminary Hearing
The magistrate held there was probable cause to believe both defendants committed the crime of murder. (§ 187.) However, it also found there was not probable cause to believe the allegation they committed the killing "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," justifying a 10-year sentence enhancement. (§ 186.22, subd. (b)(1)(C).)
"I don't believe the evidence that's been presented in this matter, including any and all of the testimony of the Detective Ontko, indicates - is sufficient to indicate that a person of ordinary prudence and caution would entertain a strong suspicion that the crime of murder in this case was committed for the benefit of, or in association with a gang."
The magistrate explained, "The only evidence, really, that I have in this connection is that gang members killed Mr. Cruz who was himself a gang member, and it occurred in the neighborhood. There is no evidence that was presented that it was done for the purpose of disciplining him or anything else. [¶] The only thing I heard the expert say is that killings like that can be done for that purpose or might have that effect, but nothing that connects his generalized opinion of what occurred in this matter. You know, I certainly wish I would have heard more about what gave rise to this killing, but I didn't hear anything, so I can't find the enhancement allegation. [¶] I can't find that there is probable cause to believe that the enhancement allegation pursuant to Penal Code section 186.22, subdivision (b)(1)(C) is true."
The magistrate therefore held the defendants to answer the murder and other charges, but not the gang enhancement allegation, and directed the prosecution to file an information containing those charges before October 23, 2019.
D. The Trial Court Ruling
The district attorney's office nevertheless included the gang enhancement allegation in the information it filed on October 21, 2019.
Aguilar and Ortega filed a motion to dismiss the gang enhancement under section 995, on the ground there was insufficient evidence at the preliminary hearing for defendants to have been held to answer to the allegations.
The trial court held a hearing on the motion on December 11, 2019, the week before trial. After reviewing the record and hearing argument, the trial court held, "Sweeping expert opinions that any violent crime enhances a gang's reputation and therefore any violent crime by gang members without specific tethered facts are insufficient for Penal Code 186.22 gang allegation enhancement[s]." The court noted Detective Ontko said several times that his opinion that the crime was committed in association with a gang and for its benefit was based on the fact that two gang members committed the crime together. The trial court agreed with the ruling at the preliminary hearing that such evidence on its own is not sufficient and granted the section 995 motion to dismiss the allegation.
The People filed a petition for writ of prohibition and a petition for writ of mandate and requested an immediate stay of the trial, set to begin on December 18, 2019. We issued an order to show cause why the relief requested shouldn't be granted and stayed the trial proceedings.
II
ANALYSIS
The People contend the trial court erroneously granted defendants' section 995 motion because the preliminary hearing evidence was sufficient to support the gang enhancement allegation.
A. Standard of Review
It is the magistrate's job at a preliminary hearing to determine whether there is "sufficient cause" to believe defendant is guilty of the offenses charged and enhancements alleged. (§§ 871, 872, subd. (a).) Sufficient cause is "'reasonable and probable cause'" or "a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (People v. Uhlemann (1973) 9 Cal.3d 662, 667.) A magistrate should not set aside an information if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. (People v. Williams (1988) 44 Cal.3d 883, 924-925.) Here, the magistrate determined the People did not establish reasonable and probable cause as to the gang allegations against the two defendants but held them to answer on the underlying charges.
"When a defendant has been held to answer after a preliminary hearing, 'it shall be the duty of the district attorney . . . to file in the superior court . . . within 15 days after the commitment, an information against the defendant which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.'" (People v. Bautista (2014) 223 Cal.App.4th 1096, 1100-1101 [quoting § 739].) The People chose to file an information which included the gang allegations the magistrate had disapproved at the preliminary hearing. The defendants, unsurprisingly, moved to dismiss the enhancement allegations under section 995.
"When the defendant challenges the district attorney's election to include charges for which defendant was not held to answer at the preliminary hearing, '[t]he character of judicial review under section 739 depends on whether the magistrate has exercised his power to render findings of fact. If he has made findings, those findings are conclusive if supported by substantial evidence. [Citations.] If he has not rendered findings, however, the reviewing court cannot assume that he has resolved factual disputes or passed upon the credibility of witnesses. A dismissal unsupported by findings therefore receives the independent scrutiny appropriate for review of questions of law. . . .' 'In summary, cases arising under section 739 recognize a clear distinction: findings of fact must be sustained if supported by substantial evidence, but a finding of lack of probable cause, unsupported by any factual findings, is reviewed as an issue of law. Absent controlling factual findings, if the magistrate dismisses a charge when the evidence provides a rational ground for believing that defendant is guilty of the offense, his ruling is erroneous as a matter of law, and will not be sustained by the reviewing court.'" (People v. Bautista, supra, 223 Cal.App.4th at p. 1101.) That's what happened in this case. The magistrate did not make findings or credibility determinations, but rather held the People did not provide sufficient evidence to sustain the enhancement allegations under the relevant standard.
On review of such a determination, whether by appeal or writ, we disregard the trial court's ruling on the section 995 motion and review the determination of the magistrate directly. (People v. Bautista, supra, 223 Cal.App.4th at p. 1101.) Thus, we independently determine the sufficiency of the record made before the magistrate at the preliminary hearing as support for the enhancement allegations in the information. (People v. Ramirez (2016) 244 Cal.App.4th 800, 813 (Ramirez).) In other words, we stand in the shoes of the magistrate at the preliminary hearing and determine whether the evidence presented there was sufficient to find probable cause to believe the gang enhancement allegations are true.
B. Gang Enhancement Allegations—Section 186.22, Subdivision (b)(1)
To establish a gang enhancement allegation under section 186.22, subdivision (b)(1), "the prosecution must prove that the underlying crime was 'committed for the benefit of, at the direction of, or in association with any criminal street gang' (the gang-related prong), 'with the specific intent to promote, further, or assist in any criminal conduct by gang members' (the specific intent prong)." (People v. Rios (2013) 222 Cal.App.4th 542, 564.)
The only issue we face is whether the evidence at the preliminary hearing was sufficient to support further proceedings on whether Aguilar and Ortega shot their fellow gang member "for the benefit of or "in association with" their gang. The requirements are disjunctive; if the evidence supported either, we must reverse the trial court order dismissing the gang allegations. (People v. Weddington (2016) 246 Cal.App.4th 468, 484 ["Because the first prong is worded in the disjunctive, a gang enhancement may be imposed without evidence of any benefit to the gang so long as the crime was committed in association with or at the direction of another gang member"].)
Detective Ontko testified at the preliminary hearing that he based his affirmative determination on the evidence that Aguilar, Ortega, and the victim were members of the same gang, and Aguilar and Ortega carried out the shooting together inside the gang's territory. Ontko also testified, based on his expertise in the behavior of gangs, that gang members may carry out violent acts against members of their own gang as a form of discipline and that local violent conduct by gang members may benefit their own gang by creating generalized fear of the gang. Ontko admitted he did not know and did not have an opinion regarding Aguilar's or Ortega's actual purpose in shooting Cruz. There appears to be no evidence on that point; at least the parties point us to none.
We therefore face the question whether the evidence that Aguilar and Ortega acted together to shoot another member of their gang in the gang's territory together with the expert's explanation of the possible benefits of such violent conduct for their gang provides "some rational ground for assuming the possibility that" they carried out the shooting in association with or for the benefit of their gang. (People v. Williams, supra, 44 Cal.3d at pp. 924-925.)
The basic problem with the evidence in this case is there's no nexus between the gang members' acts and the expert's posited purposes for the conduct. In other words, there's nothing to show whether this was an act of gang members imposing discipline within the gang by shooting a fellow gang member or a personal dispute that just happened to involve three gang members. That makes any inference that the shooting was done for the benefit of the gang essentially speculation. Presumably, that's why Detective Ontko was reluctant to draw any inference other than the shooting had the effect of benefiting the gang.
That leaves this case in a situation similar to Ramirez, supra, 244 Cal.App.4th at p. 819. There, the two defendants, Ramirez and Villarreal, were alleged to have committed an assault and attempted murder for the benefit of their gang. According to one of the victims, Natalie, who testified at the preliminary hearing, the defendants were outside her house with several other people when she got into an argument with them. Villarreal hit her with a baseball bat, and, when the second victim, Andy, intervened to help her, Ramirez shot him in the face. (Id. at p. 804.) The gang expert opined that the gang members' violent assault benefited the gang because violent assaults by gang members increase the gang's reputation. (Id. at p. 819) The court questioned the legitimacy of applying the expert's opinion about gangs in general to specific cases and noted "no other preliminary hearing evidence supports an inference the attempted murder of Andy or the assault on Natalie was gang related. For example, no gang signs were flashed, no gang names were called out, and no gang attire was worn. . . . Likewise, there is no evidence the disputes between [the two victims] on the one hand, and [the two defendants] on the other, had anything to do with any gang." (Ibid.) The court concluded, "there was no preliminary hearing evidence apart from [the gang expert's] purely conclusory and factually unsupported opinions that the attempted murder and the assault were committed for the benefit of, at the direction of, or in association with the [gang]." (Id. at pp. 819-820.)
We believe the same logic applies to the evidence in this case that Aguilar and Ortega committed the shooting for the benefit of the gang. We first note that both the defendants and the victim were members of the same gang, not rival gangs. Without some evidentiary link between the violence and the gang, it's pure speculation to infer the shooting was for the gang's benefit and not the benefit of the defendants alone, perhaps the resolution of a personal dispute. Detective Ontko testified that the shooting could benefit the gang, for example if it was a case of imposing discipline on a fellow gang member. However, he could point to no evidence to support drawing that inference. (See People v. Ochoa (2009) 179 Cal.App.4th 650, 662 ["While the sergeant testified that the carjacking could benefit defendant's gang in a number of ways, he had no specific evidentiary support for drawing such inferences"].) To that extent, we agree with the magistrate and the trial court that the evidence at the preliminary hearing wasn't sufficient.
However, that doesn't end our analysis, because the gang enhancement may be warranted based solely on the fact the offense was carried out "in association with" the gang. (People v. Weddington, supra, 246 Cal.App.4th at p. 484.) We think the evidence of coordination among established gang members in this case is sufficient to meet the threshold, which is quite low, of raising a reasonable possibility the act was done in association with the gang. The evidence on that point is much stronger here than it was in Ramirez, where the evidence of gang membership itself was minimal. In that case, the court accepted as sufficient to show gang membership preliminary hearing evidence that Ramirez had gang related tattoos. (Ramirez, supra, 244 Cal.App.4th at p. 818.) However, the court rejected the expert's opinion that Villarreal was a gang member because he "basically inferred Villarreal was an associate, because Ramirez was a member." (Ibid.) The court also noted that "while Natalie told the deputies she saw several people in front of her house with defendants, the prosecution presented no evidence that any of those people were [gang] members." (Ibid.) Thus, in Ramirez, relatively weak evidence supported finding only one gang member engaged in the charged conduct, which he committed only with people who were not gang members.
The evidence of gang membership is much stronger here. For starters, both defendants had admitted being members of the gang, and Aguilar had registered as one with the police. Both had gang tattoos, and Ortega had clothing and paraphernalia indicative of his membership. The evidence also indicated they were active, and that Aguilar was a decision-maker in the gang. After the shooting, Ontko heard Aguilar and Ortega discuss gang business on intercepted phone calls. Defendants don't dispute the strength of this evidence. Thus, unlike in Ramirez, there is no reason to doubt the crime was committed by two active gang members.
Also unlike in Ramirez, there was strong evidence showing the two active members and an associate worked in a coordinated effort to find and shoot Cruz. Cruz's girlfriend testified that Aguilar and someone matching Ortega's description approached her in an SUV on the night of the shooting. Ortega asked her where Cruz was. After she told them, they immediately exited the SUV and switched places with a woman who had been riding in a silver sedan nearby. The woman moved from the sedan to the SUV and drove off. Aguilar got into the sedan's right front passenger seat and Ortega got in the back. A woman matching a description of Ortega's girlfriend drove the sedan. They drove off in the direction of the gas station, and shortly thereafter Cruz's girlfriend heard gunshots. Police later identified the SUV as belonging to Ortega and the sedan as belonging to his girlfriend. The plot involved a high degree of planning, including that they went out together to hunt for their victim, and switched vehicles to avoid alerting the victim of their approach.
We conclude this evidence, taken together, provides some rational ground for assuming the possibility that Aguilar and Ortega carried out the shooting in association with their gang. While the connection between their gang membership and the shooting is not tight, it is enough to move forward at trial with the gang enhancement allegation. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 ["Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"]; People v. Romero (2006) 140 Cal.App.4th 15 ["There was ample evidence that defendant intended to commit a crime, that he intended to help the codefendant commit a crime, and that he knew the codefendant was a member of his gang. This evidence created a reasonable inference that defendant possessed the specific intent to further the codefendant's criminal conduct"].)
We note this means it is substantially easier to show defendants committed a crime in association with a gang than that defendants acted for the benefit of a gang. Though that may not be satisfactory in view of the Legislative purpose of making clear "[n]ot every crime committed by gang members is related to a gang," it is the current state of the law. (People v. Albillar (2010) 51 Cal.4th 47["the Legislature included the requirement that the crime to be enhanced be committed for the benefit of, at the direction of, or in association with a criminal street gang to make it 'clear that a criminal offense is subject to increased punishment under the STEP Act only if the crime is 'gang related''"] italics added.)
We caution that our opinion does not mean the evidence supporting the gang enhancement is enough to warrant finding the allegation true. Even supposing the evidence at trial is the same as the evidence at the preliminary hearing, the prosecution carries a much heavier burden to obtain a conviction than they do to force the defendants to face charges at trial.
III
DISPOSITION
Let a petition for writ of mandate issue directing respondent superior court to vacate its order granting defendants' motion to dismiss gang enhancement allegations under Penal Code section 186.22, subdivision (b)(1)(C) and issue a new order denying the motion. We direct the petitioner to prepare and have a writ of mandate issued, copies served, and the original filed with the clerk of court, together with proof of service to all parties. The stay we ordered on December 17, 2019 shall be dissolved when our remittitur issues.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. MENETREZ
J.