ANTHONY LAMONT HUNT v. THE PEOPLE (2011)

OPINION AND ORDER

GRANTING PEREMPTORY

WRIT OF MANDATE

The People having conceded that the felony charge against Anthony Lamont Hunt should have been dismissed, and Hunt having conceded that the People may seek leave to amend the information to add a misdemeanor count, we hereby issue this writ, commanding the trial court to conduct a hearing on the People's motion and, after having made a determination regarding the amendment, to dismiss the felony charge against Hunt.

At the preliminary hearing, Deputy Sheriff Robert D. Heins testified that he responded to a call at the EZ8 Motel and saw a man, subsequently identified as Hunt, standing at the open doorway to a room.   The man “immediately got startled, reached for his waistband [where the deputy saw the butt of a gun], turned and starting walking back into the room.”   The deputy asked the man to stop, but he slammed the door shut.   The deputy kicked at the door and searched the room, uncovering a .380 automatic handgun under a mattress;  the serial numbers on the gun had been scratched off.

Hunt is charged with one count of possession of a firearm by a felon.   (Pen.Code, § 12021, subd. (a)(1).) ¹  The predicate felony is a 2006 conviction of one count of causing bodily injury while driving under the influence of alcohol and/or a drug in violation of Vehicle Code section 23153, subdivision (a) [“It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”].

At the preliminary hearing, the parties entered into a stipulation that, for the purpose of the preliminary hearing, the 2006 DUI/GBI conviction was reduced to a misdemeanor (§ 17) and then dismissed. (§ 1203.4, subd. (a).)

Hunt moved to dismiss the charges on the basis that the underlying 2006 crime could not support a charge of felon in possession of a firearm.   The motion was denied.   As the People concede, the motion should have been granted.   (People v. Gilbreth (2007) 156 Cal.App.4th 53, 57.)

While conceding that the felony charge must be dismissed, the People request permission to add a misdemeanor count, alleging violation of section 12094, before the complaint is dismissed.   The determination as to whether the complaint should be amended to add a misdemeanor charge must be left to the trial court.²

DISPOSITION

NOT TO BE PUBLISHED

_ _

MALLANO, P.J. ROTHSCHILD, J. JOHNSON, J.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance.  (Code Civ. Proc., § 1088.)   The parties were notified of the court's intention to issue a peremptory writ.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.).  FN2. As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance.  (Code Civ. Proc., § 1088.)   The parties were notified of the court's intention to issue a peremptory writ.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)