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The People v. the Superior Court of

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO


December 27, 2010

THE PEOPLE, PETITIONER,
v.
THE SUPERIOR COURT OF RIVERSIDE COUNTY, RESPONDENT; STEVEN MORALES, JR., REAL PARTY IN INTEREST.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Gordon R. Burkhart, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.No. RIF153760)

The opinion of the court was delivered by: McKINSTER Acting P.J.

P. v. Superior Court

CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Petition granted in part and denied in part.

Blumenthal Law Offices and Brent F. Romney for Real Party in Interest.

In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. In order to expedite reinstatement of the charges, we issue a peremptory writ of mandate in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.)

Even though the order dismissing part of the information is appealable, writ review is appropriate to resolve the matter expeditiously in light of the impending trial on the remaining count. (People v. Superior Court (Bolden) (1989) 209 Cal.App.3d 1109.) We conclude that the superior court erred in dismissing counts 1, 2, 3, and 4, but not in dismissing counts 5 and 6. Accordingly, grant the People's petition in part and deny it in part.

The standard of review in considering a motion brought under Penal Code section 995 is well established. "An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. . . . A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and every legitimate inference that may be drawn by the reviewing court from the evidence must be drawn in favor of the information. (Rideout v. Superior Court (1967) 67 Cal.2d 471.)" (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464-465.)

Here, we agree with real party in interest that inference of guilt cannot be drawn simply based upon his position in the businesses. We conclude, however, that the evidence introduced at the preliminary hearing supports an inference that real party in interest knew and participated in his son's schemes not to withhold and pay the Employment Development Department (EDD) taxes, as well as to defraud the workers' compensation insurance carriers. For instance, one employee testified that real party in interest was the one who handed out the payroll checks and instructed the employee to fill out the employees' time sheets using a pencil so changes could be made. The employee thought this was unusual, and it does suggest that the records were being altered to further the scheme of underreporting. When an adjuster for the workers' compensation insurer came to the company's offices, real party in interest instructed the other employees present to leave and he would deal with the adjuster himself.

Furthermore, real party in interest was involved in bidding projects, which would require him to have some knowledge of the costs, and a not insignificant part of the costs was based on workers' compensation insurance premiums for the employees needed on the project. The chief operating officer for the company testified that the company seemed to be underbidding. A reasonable inference can be drawn from the totality of evidence that real party in interest was aware that the company was not accurately reporting information to its workers' compensation insurance carriers and was failing to collect and pay taxes to the EDD.

We must agree with the superior court that the evidence does not support the money laundering charge because there was no evidence to show the involvement of a financial institution as defined in Penal Code section 186.9, subdivision (b). We also agree the evidence that petitioner arranged payment for an injured employee's immediate medical treatment is insufficient in itself to suggest a violation of Penal Code section 550, subdivision (b)(3).

DISPOSITION

Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to vacate its order dismissing counts 1, 2, 3 and 4 of the seven-count information and to enter a new order denying the defendant's motion to dismiss these charges. In all other respects, the petition is denied.

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.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

We concur: KING J. MILLER J.

20101227

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