P.

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…