Salvadori v. Super. Ct. CA1/2

Filed 11/10/15 Salvadori v. Super. Ct. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

DANTE KEITH SALVADORI, Petitioner, A144504 v. THE SUPERIOR COURT OF SONOMA (Sonoma County COUNTY, Super. Ct. No. SCR-646719) Respondent, THE PEOPLE, Real Party in Interest.

Petitioner Dante Keith Salvadori, defendant below, petitions for a writ of prohibition and/or mandate that directs the Sonoma County Superior Court to dismiss a kidnapping to commit robbery count against him. Petitioner contends the trial court improperly denied his motion, brought pursuant to Penal Code section 995,1 to dismiss that count for lack of evidence that the asportation of the alleged victim was other than incidental to robbery. We conclude the trial court properly denied his motion and deny the petition. BACKGROUND In April 2014, the Sonoma County District Attorney filed a felony complaint alleging in seven counts that petitioner had violated numerous sections of the Penal Code based on his participation in an attack on, and attempted robbery of, Bolivar Medina on

1 All further statutory references herein are to the Penal Code.

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November 27, 2013. The District Attorney did not allege that petitioner had participated in a kidnapping. I. The Preliminary Hearing At the preliminary hearing before a magistrate, Bolivar Medina testified through an interpreter that in the early evening of November 27, 2013, he parked his truck on the street outside his Santa Rosa, California home and separated from those who had accompanied him about town. Medina walked alone towards his house as he talked on his mobile phone. When he had walked about ten feet to his driveway and stood about 30 feet from his house door, four pistol-armed men dressed in black, three of them wearing masks, approached him. Medina did not know them. The unmasked man threw him to the ground and all four jumped on top of him. They said, “ ‘Where’s the marijuana at?’ ” Medina replied that he did not know what they were talking about. According to Medina, the four men then got him up off the ground, pointed guns at him and walked him to the door of his house. They yelled at him to open it and not to move because they were going to kill him. Medina unlocked the door, then tried to go in quickly and shut it behind him out of concern for his wife, son and stepson, who were inside. However, the men hit him and forced their way into the house. Medina threw one of the men onto the ground. His wife came into the room and one of the attackers threw her down beside Medina. Medina testified that the men were screaming things like, “ ‘Get down on the ground; don’t move.’ ” Asked if the men made demands for marijuana or any other property, Medina testified, “There was so much confusion and—and yelling and—and they were pulling—taking one thing and another; and I didn’t—and they were asking for a lot of things from me. They were yelling out, and they were all yelling just in—in English,” a language Medina did not know. The men hit him, including with their guns. Medina also testified that as he wrestled on the ground with one of the men, a shot fired from the man’s gun. The men dispersed and Medina’s wife was able to get up and