People v. Super. Ct. CA1/1

Filed 5/28/14 P. v. Super. Ct. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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,