Filed 1/28/15 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                     E061965

v.                                                                       (Super.Ct.No. INF1302292)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

DARRYL INIGO FREEMAN,

         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 is granted.

         Paul E. Zellerbach, District Attorney, Natalie M. Pitre, Deputy District Attorney,

for Petitioner.

         No appearance for Respondent.


                                                             1
        Steven L. Harmon, Public Defender, Brian L. Boles, Thomas M. Cavanaugh, Chad

W. Firetag, Tracy M. Macuga, Assistant Public Defenders, Lisa M. Larson and Laura

Arnold, Deputy Public Defenders, for Real Party in Interest.

        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.)

                                       DISCUSSION

        When a petition is filed involving a motion to dismiss for insufficient evidence

under Penal Code section 995, we directly review the decision of the magistrate, drawing

every legitimate inference in support of the magistrate’s ruling. (People v. Laiwa (1983)

34 Cal.3d 711; People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690.) The

standard is whether the evidence introduced at the preliminary hearing would allow a

reasonable person to entertain a strong suspicion of the defendant’s guilt. (Lexin v.

Superior Court (2010) 47 Cal.4th 1050.)

        In this case, the evidence presented at the preliminary hearing, viewed in the light

specified above, was that defendant, upset over a planned trip by the victim, played

“Russian Roulette” with a loaded handgun, once pointing it at the victim as he pulled the

trigger. Meanwhile, defendant was threatening to kill the victim and/or himself. Shortly




                                              2
thereafter, as the victim tried to contact relatives, defendant grabbed her by the neck and

threw her down and choked her for several seconds.

       The trial court erred in accepting as fact defendant’s proffered explanation of his

conduct as a foolish, drunken attempt to persuade the victim to stay with him, done

without any intent to harm her. The evidence clearly supports the inference drawn by the

magistrate—that defendant was distraught and willing to risk killing either himself or the

victim, and then directly assaulted her with the intent to choke her to death.

       Defendant asserts that even if there was sufficient evidence to support a finding of

intent to kill, there was insufficient evidence that he premeditated the killing. There is no

fixed amount of time during which a defendant must contemplate the crime; it is enough

if there is sufficient time for some reflection over the intended act. (People v. Watkins

(2012) 55 Cal.4th 999.) Again, the evidence was sufficient to support the conclusion that

over the course of the incident, defendant had the time to form and reflect on his intent to

kill the victim.

                                      DISPOSITION

       Accordingly, the petition for writ of prohibition/mandate is granted. Let a

peremptory writ of mandate issue directing the Superior Court of Riverside County to

vacate its order granting defendant’s motion to dismiss, and to enter a new order denying

the motion.




                                              3
       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

                                                                 KING
                                                                                             J.
We concur:



HOLLENHORST
          Acting P. J.



RICHLI
                           J.




                                                4
