Filed 5/28/14 P. v. Super. Ct. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Petitioner,
                                                                     A141766
v.
THE SUPERIOR COURT OF CONTRA                                         (Contra Costa County
COSTA COUNTY,                                                        Super. Ct. No. 51402619)
         Respondent;
JULIO LANDAVERDE,
         Real Party in Interest.


         After the trial court dismissed count one of a felony information charging real
party in interest Julio Landaverde (defendant) with residential burglary (Pen. Code,1
§ 460, subd. (a)), the People filed a petition for writ of mandate asking that we vacate the
trial court’s order and direct it to enter a new order denying defendant’s motion to
dismiss the burglary charge. Upon receiving the People’s petition, we stayed trial court
proceedings, requested opposition, and placed the parties on notice that we may choose to
act by issuing a peremptory writ in the first instance pursuant to Palma v. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171. For the reasons set forth below, we now grant the
People’s petition for writ of mandate and dissolve the stay of trial court proceedings.




1
    Further statutory references are to the Penal Code unless otherwise noted.
                                     BACKGROUND
       In November 2013, the Contra Costa County District Attorney (DA) filed a felony
complaint charging defendant with domestic violence battery, residential burglary,
assault by force likely to produce great bodily injury, child abuse, violation of a
restraining order, stalking, and petty theft. A preliminary hearing was held on January 24
and 27, 2014. At the preliminary hearing, the victim, Gladis Galdamez, testified through
an interpreter that defendant is her husband; they met in El Salvador and she has been
with him 11 years. They have two children, Jeremy and Isela. In August 2012, Galdamez
obtained a criminal protective order against defendant as well as a civil restraining order
issued by family court; both are no-contact, stay-away orders.
       Galdamez further testified that on November 20, 2013, she and her children
returned home from the park and her daughter left the door to the house partially open.
Defendant then entered the house without Galdamez’s permission and tried to hug her.
Galdamez told defendant not to touch her. Defendant hit her in the stomach and grabbed
her arm. The children saw defendant hit Galdamez. Jeremy said, “Don’t do that to
mommy” and grabbed defendant by the belt. At that point, defendant received a phone
call and went out onto an outside balcony to take the call. Jeremy locked the door to the
balcony. Galdamez went to her bedroom, intending to call the police. Isela opened the
balcony door for her father and then came into the bedroom. Before Galdamez could call
the police, Isela began showing Galdamez her homework. A few seconds later,
defendant entered the bedroom and tried to grab the homework as well as Galdamez’s
phone. Defendant said Galdamez had provoked him and punched her in the face with his
fist, hitting her just below the right eye. Defendant left and Galdamez called the police;
defendant took the keys to the apartment as he left and also punched a hole in the wall.
Galdamez’s brother, Vladimir, lives with her and he took her to the hospital.
       Vladimir testified he took his sister to the hospital on the evening of the incident in
question and afterwards returned home with the children. Later, after Jeremy was in bed,

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he fell asleep on the sofa with Isela. Vladimir was wakened by defendant hitting him on
the chest with his fist. Defendant wanted to know Galdamez’s whereabouts and Vladimir
told defendant she was in the hospital. Defendant was angry because he could not talk to
Galdamez. Defendant hit Vladimir in the face and began throttling him by the neck.
Isela yelled, “Let go of my uncle.” Isela called the police and defendant ran off.
       At the conclusion of testimony, in regard to the residential burglary count, the
magistrate stated: “I see nothing in particular that suggests that the defendant entered the
premises to commit a theft. . . . [¶] The next question is, . . . [who] did he entertain an
intent to commit some act of violence upon?” On that point, the court magistrate noted
that when defendant entered the home, he “tried to hug her or asked if she would hug
him, which is inconsistent with an intent” to commit violence upon entry. The prosecutor
stated: “He entered twice. Both times he entered with the intent to commit stalking; and
the second time [when Vladimir was at home] he entered with the intent to commit
dissuasion of a witness.”
       In delivering its ruling, the magistrate stated: “I don’t find there is sufficient
evidence with respect to Count Two [residential burglary], and . . . the reason for that
revolves around the whole issue of what intent [defendant] had when he entered the
premises . . . . [T]he evidence . . . does not indicate to me that he had the intent to
commit any sort of theft or larceny nor does it indicate to me that he had the intent to
commit any other felony when he entered the premises, including particularly stalking,
which I’ll get to later.” The court subsequently threw out the stalking charge for
insufficiency of the evidence.
       Thereafter, on February 6, 2014, the DA filed a seven-count, felony information
charging defendant as follows: count one—first degree residential burglary; count two—
felony infliction of corporal injury on a spouse; count three—misdemeanor violation of
court order; count four—felony assault [on Vladimir]; count five—misdemeanor child
cruelty; count six—misdemeanor child cruelty; count seven—misdemeanor petty theft.

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       On March 26, 2014, defendant filed a motion to dismiss count one of the
information pursuant to sections 739 and 995. The People opposed the motion to
dismiss, arguing that at the preliminary hearing the magistrate found insufficient evidence
for burglary at the time of entry to the home, but made no finding related to intent at the
time of entry to the bedroom. Relying on People v. Sparks (2002) 28 Cal.4th 71
(Sparks), the People asserted defendant’s entry into the bedroom with the intent to beat
the victim satisfied the intent element of residential burglary.
       On April 16, the court held a hearing on the motion to dismiss. After entertaining
argument of counsel, the court granted defendant’s motion to dismiss the burglary count.
Noting that the “required intent must exist at the time of the entry,” the court found that
upon defendant’s initial entry into the victim’s house, defendant “intended some sort of
reconciliation rather than the commission of a theft or a felony.” Turning to the “second
entry” of the victim’s house, the court found there no evidence showing defendant
entered with the intent of assaulting Vladimir Galdamez. After granting defendant’s
motion to dismiss the burglary charge, the following colloquy took place: “THE
COURT: And that means that Count 1 is now dismissed. [¶] . . . [¶] Any questions? [¶]
MR. SEYMOUR [Prosecutor]: Yes, Your Honor. When Your Honor says ‘structure,’
Your Honor is referring to the home itself and not the entry into the [bed]room? [¶] THE
COURT: I was also referring to the separate entry into the room, and I was -- although I
didn’t specifically refer to it, there’s even a third possible argument that you were making
about him coming back from the balcony. [¶] MR. SEYMOUR: That was the argument
that I briefed, yes. [¶] THE COURT: And I think that there was a sufficient time delay
with the balcony door was locked and eventually unlocked by, I think, the daughter that I
don’t think he had the intent either on the third thing, if I didn’t specifically say that,
coming in from the balcony. [¶] So for all of those reasons, I am still in agreement with
the fact that he shouldn't be facing a residential burglary charge in this one. [¶] All right.
Thank you.”

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                                         DISCUSSION
        “An information will not be set aside if there is some rational ground for
assuming the possibility that an offense has been committed and that the accused is guilty
of it. [Citation.] The information will be set aside only where there is no evidence that a
crime has been committed or there is no evidence to connect the defendant with a crime
shown to have been committed. [Citation.] Every legitimate inference that may be drawn
from the evidence must be drawn in favor of the information. [Citation.]” (People v.
Superior Court (Smart) (1986) 179 Cal.App.3d 860, 864, italics omitted.)
       Here, the magistrate and the respondent court determined that no probable cause
existed to support a charge of residential burglary. “This determination, based upon
undisputed facts, constituted a legal conclusion which is subject to independent review on
appeal.” (People v. Watson (1981) 30 Cal.3d 290, 300.) In such a case, the function of
the appellate court is to “determine whether a person of ordinary caution or prudence
would be led to believe and conscientiously entertain a strong suspicion that the
defendant committed the crime charged.” (Smart, supra, 179 Cal.App.3d at pp. 864–865;
see also People v. Superior Court (Lujan) (1999) 73 Cal.App.4th 1123, 1127 [“A
defendant may be held to answer ‘if there is some rational ground for assuming the
possibility that an offense has been committed and that the accused is guilty of it.’ ”].)
       Patently, the People’s theory of burglary based on the above facts is viable under
People v. Sparks, supra, 28 Cal.4th 71, which the People cited in the opposition brief
filed below and also rely on in their writ petition. In Sparks, our Supreme Court stated:
“Section 459 of the Penal Code provides, in part, that one who ‘enters any house, room,
apartment, . . . store, . . . or other building . . . with intent to commit ... larceny or any
felony is guilty of burglary.’ (Italics added.) We granted review to address a conflict in
Court of Appeal decisions concerning whether a defendant’s entry into a bedroom within
a single-family house with the requisite intent can support a burglary conviction if that
intent was formed only after the defendant’s entry into the house. We conclude that such

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an entry can support a burglary conviction under section 459, and hence reverse the
judgment of the Court of Appeal, which reached a contrary conclusion.” (Id. at p. 73.)
       Moreover, the facts presented here are more than sufficient to permit a person of
“ordinary caution” to “entertain a strong suspicion” that defendant committed the crime
of burglary after he left the outside balcony and entered the victim’s bedroom with the
intention of committing an assault (Smart, supra, 179 Cal.App.3d at p. 865), which intent
may be inferred from the fact defendant had punched the victim in the stomach and
grabbed her by the arm only minutes before, was interrupted by a phone call and then
assaulted her again immediately upon entry into her bedroom. (Cf. People v. Abilez
(2007) 41 Cal.4th 472, 508 [noting intent is “often proved by circumstantial evidence”].)
       In sum, there is ample evidence here, based on the theory of burglary affirmed by
the Supreme Court in Sparks, supra, 28 Cal.4th 71, to hold defendant to answer for
residential burglary.
                                     DISPOSITION
       In accordance with our prior notification to the parties that we might do so, we
will direct issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180.) The People’s right to relief is obvious,
and no useful purpose would be served by issuance of an alternative writ or by further
briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also
Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236–1237, 1240–1241; Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1243–1244.)
       Let a peremptory writ of mandate issue commanding respondent the Superior
Court of Contra Costa County, in case no. 51402619, to vacate its order dismissing count
one of the felony information against defendant and to enter a new and different order
denying defendant’s motion to dismiss the charge. Our decision is final in this court




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immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The stay of trial court
proceedings imposed by this court on May 9, 2014, is hereby dissolved.2




                                                 _________________________
                                                 Dondero, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Becton, J.




2
  After the trial court complies with the directives of the peremptory writ, the People are
respectfully requested to voluntarily dismiss as moot the related appeal in People v.
Landaverde (A141639), which the People filed in order to preserve this issue.
* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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