Filed 10/8/14 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                     E061778

v.                                                                       (Super.Ct.No. BLF1300145)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

ANTHONY FRANK HAIRSTON,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of prohibition/mandate. William

S. Lebov, Judge. (Retired Judge of the Yolo Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.

         Paul E. Zellerbach, District Attorney, and Alan D. Tate, Deputy District Attorney,

for Petitioner.

         No appearance for Respondent.


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       Steven L. Harmon, Public Defender, and William A. Meronek, Deputy Public

Defender, for Real Party in Interest.

       The court has read and considered the record, as well as the petition and the

opposition thereto, which we conclude adequately address the issues raised by the

petition. We have concluded that an alternative writ would add nothing to the

presentation already made and would cause undue delay in bringing this action to trial.

We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088;

Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v.

Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in

Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)

       Even though the order dismissing part of the information is appealable, writ

review is appropriate to resolve the matter expeditiously in light of the impending trial on

the remaining count. (People v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109.)

       The standard of review in considering a motion brought under Penal Code section

9951 is well established. “An information will not be set aside or a prosecution thereon

prohibited if there is some rational ground for assuming the possibility that an offense has

been committed and the accused is guilty of it. A reviewing court may not substitute its

judgment as to the weight of the evidence for that of the magistrate, and every legitimate

inference that may be drawn by the reviewing court from the evidence must be drawn in




       1   All further statutory references are to the Penal Code, unless otherwise stated.


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favor of the information. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.)”

(Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464-465.)

       An appellate court must disregard the ruling of the superior court and directly

review the determination of the magistrate holding the defendant to answer. (People v.

Laiwa (1983) 34 Cal.3d 711, 718.)

       Applying these principles to the instant case, we must conclude that the superior

court erred in dismissing the charges of burglary (§ 459) and assault with a deadly

weapon (§ 245, subd. (a)(1)).

       Burglary. With respect to the burglary charge, there clearly was sufficient

evidence from which to infer that real party in interest (real party) entered the apartment

to commit a felony—to wit, to inflict corporal injury on his estranged wife. The trial

court relied on the fact that he did not enter the apartment with the knife. We do not find

this to be significant under the circumstances. He pounded on the rear sliding glass door

and demanded to be let in. He yelled and kicked at the front door. When he finally

gained entrance, he dragged his wife from the bedroom to a place where he could readily

obtain the knife. While he may or may not have entered the apartment thinking he would

get the knife, one can reasonably infer he did. An even stronger inference can be drawn

from the evidence that he entered the apartment with the intent to inflict some form of

corporal punishment on his wife.

       Real party moved to set aside the burglary charge in part on the ground that he had

an ongoing possessor interest in the apartment. Although the superior court did not



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appear to base its ruling on this issue, we note that a person can be convicted of

burglarizing what had been his home if he has previously given up possessory interest in

it. (See People v. Gill (2008) 159 Cal.App.4th 149, 161; People v. Ulloa (2009) 180

Cal.App.4th 601, 606-607.) In Ulloa, the estranged husband was guilty of burglary when

he entered the apartment and took money from his wife’s purse. Even though he was still

a cotenant on the lease, the evidence showed he had moved out and no longer had an

unconditional possessory interest in the apartment. The facts here with respect to real

party’s possessory interest in the apartment are similar to those in Ulloa, supporting a

conclusion that real party can be found guilty of burglary.

       Assault. Assault and assault with a deadly weapon are general intent crimes that

do not require a specific intent to injure the victim or a subjective awareness of the risk

that an injury might occur. (People v. Williams (2001) 26 Cal.4th 779, 788, 790.)

“Rather, assault only requires an intentional act and actual knowledge of those facts

sufficient to establish that the act by its nature will probably and directly result in the

application of physical force against another.” (Id. at p. 790.)

       In order to establish an assault, the People need not prove that the defendant

actually made an attempt to strike or use the weapon on the victim. (People v. McCoy

(1944) 25 Cal.2d 177, 189 [victim was threatened with knife held inches from her face

before and after she was knocked to sidewalk]; see also People v. Colantuono (1994) 7

Cal.4th 206, 219 [“As this court explained more than a century ago, ‘Holding up a fist in




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a menacing manner, drawing a sword, or bayonet, presenting a gun at a person who is

within its range, have been held to constitute an assault’ ”].)

       Based on the standard of review set forth above, there clearly seems to be

sufficient evidence to hold real party to answer on the assault with a deadly weapon

charge.

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the Superior Court of Riverside

County to set aside its order granting real party’s section 995 motion and to enter a new

order reinstating the charges of burglary and assault with a deadly weapon.

       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.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                  RICHLI
                                                                                 Acting P. J.


We concur:


HOLLENHORST
                           J.


McKINSTER
                           J.



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