Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super. Ct. No. FSB800265, Donna G. Garza, Judge.
Michael A. Ramos, District Attorney, and Grover D. Merritt, Lead Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Doreen Boxer, Public Defender, Rasheed S. Alexander and George W. Taylor, Deputy Public Defenders, for Real Party in Interest.
OPINION
HOLLENHORST, Acting P. J.
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.)
Where the magistrate makes findings of fact based on disputed or conflicting evidence, those findings are binding on the People. (Jones v. Superior Court (1971) 4 Cal.3d 660.) However, if the magistrate merely finds the evidence insufficient, or makes a purported factual conclusion based only on inference, the People are free to file whatever charges they believe to be shown by the evidence. (See Dudley v. Superior Court (1974) 36 Cal.App.3d 977.)
In this case, the magistrate’s only relevant factual finding was that the victim acted provocatively toward defendant. Even if the victim’s conduct were sufficient provocation (but see People v. Manriquez (2005) 37 Cal.4th 547 ), any “finding” that defendant did, in fact, act in the heat of passion, which negated malice could not have been more than an inference from circumstantial evidence. Given that the magistrate acknowledged the existence of evidence that defendant left the scene, armed himself, and then returned to confront the victim, an inference that defendant acted deliberately and not in the heat of passion is eminently available. (Cf. Walker v. Superior Court (1980) 107 Cal.App.3d 884 [defendant testified as to his state of fear and the killing followed a confrontation without a “break in the action”].)Insofar as the magistrate purported to find that defendant acted without malice, the finding was legally erroneous.
DISPOSITION
The superior court erred in granting defendant’s motion to dismiss. (Pen. Code, § 995.) Accordingly, we grant the petition.
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order granting defendant’s motion to dismiss the murder charge and to enter a new order denying the motion.
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: McKINSTER, J., MILLER, J.