People v. Super. Ct. CA1/3

Filed 7/24/14 P. v. Super. Ct. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF THE CITY A142049 AND COUNTY OF SAN FRANCISCO, (City & County of San Francisco Respondent; Super. Ct. No. 221814) JAMES PITRE, Real Party in Interest.

The San Francisco District Attorney on behalf of the People petitions for a writ of mandate to set aside the trial court’s order dismissing one count of a four-count information against real party in interest James Pitre. At the conclusion of the preliminary hearing, the magistrate upheld the sufficiency of evidence to support counts charging Pitre with grand theft of personal property, receiving or buying stolen property, and possession of burglary tools, but dismissed count I of the complaint charging him with first degree residential burglary (Pen. Code, § 459).1 The same charge was nonetheless included in the subsequently filed information which the trial court dismissed pursuant to Pitre’s motion under section 995. In response to the People’s petition, this court previously stayed the trial court proceedings, requested informal opposition, and advised

1  All statutory references are to the Penal Code.

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the parties that if appropriate this court might resolve the issue without a further hearing pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180. The evidence introduced at the preliminary hearing showed that on January 10, 2014, John Caudy and a roommate were in their apartment at 1630 La Salle Avenue in San Francisco. The residence is a four-level structure; the landlord and his family occupy the first floor, and Caudy and roommates occupy the upper floors, the fourth floor being the roof with a deck and chairs. The upper floors are accessed through a door on the second floor. From approximately 12:30 to 3:30 p.m., Caudy and his roommate were on the fourth floor roof deck. When they returned to the lower floors, they observed that several items that had been in the apartment before they went to the roof were missing: The roommate’s laptop computer and Caudy’s iPad and keys.2 Although Caudy had earlier locked with a dead bolt the second floor door, the door was then unlocked and ajar, with no signs (other than scratch marks that might have been there before) that anyone had broken the dead lock. About 2:55 p.m. on the same day, plainclothes police officers observed Pitre walking in the middle of the street approximately a half block from 1630 La Salle Avenue. After Pitre appeared to see the officers, he immediately walked to the sidewalk and tossed a backpack under a panel van. When the officers approached Pitre, he acknowledged that the backpack was his. A records check disclosed that Pitre was on probation with a warrantless search condition and a search disclosed the roommate’s laptop and a crowbar in the backpack, Caudy’s iPad stashed between Pitre’s waist and waistband inside of his pants, and Caudy’s keys inside Pitre’s jacket pocket. Pitre told one of the officers that he had purchased the computer and iPad from “a Hispanic male” for $20. Caudy testified that he had not given Pitre permission to enter the residence. The magistrate did “not find sufficient cause to believe Mr. Pitre guilty of” first degree burglary. In ruling on the section 995 motion, the trial court stated correctly that the magistrate’s decision was not based on any factual findings, but explained: “I’m not                                                              2 The roommate’s bicycle was also missing but was found outside the front door of the apartment.