Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Dale R. Wells and Stephen Gallon, Temporary Judges. (Pursuant to Cal. Const., art. VI, § 21.) Super.Ct. No. INF064806
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
John Patrick Dolan for Real Party in Interest
OPINION
McKINSTER, Acting P.J.
INTRODUCTION
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
The standard for holding a defendant to answer a charge is simply whether the evidence presented at the preliminary hearing would justify a “strong suspicion” that the offense was committed and that the defendant committed it. The magistrate (and the judge hearing a motion under Pen. Code, § 995) does not determine guilt or whether the evidence would be sufficient to support a verdict. (Cooley v. Superior Court (2002) 29 Cal.4th 228.)
A charge of rape includes the necessary element that the act was committed either by “force, violence, duress, menace, or fear.” (Pen. Code, § 261, subd. (a)(2).) Duress is further defined as “a direct or implied threat of force, violence, danger, or retribution.” (Pen. Code, § 261, subd. (b).) It is true that the victim’s testimony concerning previous instances of force by defendant against her and her belief that he might give her another “beating” if she resisted was somewhat equivocal. However, the fact that defendant had disciplined the victim by a “beating” in the past, coupled with the victim’s testimony that she was concerned that he might physically abuse her again if he was strongly upset by her refusal, constituted sufficient evidence that the victim acted (or failed to act) under the influence of subjective fear. (See People v. Iniguez (1994) 7 Cal.4th 847.) This is not a case in which the evidence of fear or duress is shown only by the perpetrator’s parental authority and the disparity in size between him and the victim. (Cf. People v. Espinoza (2002) 95 Cal.App.4th 1287.) At least at this stage of the proceedings, defendant’s willingness to use force against the victim in the past supports holding him to answer for accomplishing the act of intercourse by fear or duress.
DISPOSITION
Accordingly, we conclude that the trial court erred in dismissing the rape charges and we grant the People’s petition.
The stay previously ordered by this court on August 27, 2010, is lifted.
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order dismissing the rape charges and to enter a new order denying defendant’s motion to dismiss.
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.
We concur: HOLLENHORST, J., RICHLI, J.