(Super. Ct. No. BA361187) ORIGINAL PROCEEDING. Petition for Writ of Mandate. Kathleen A. Kennedy, Judge. Petition granted.
The opinion of the court was delivered by: Kumar, J.*fn4
CERTIFIED FOR PUBLICATION
Elections Code*fn1 section 2026 provides, "The domicile of a Member of the Legislature . . . shall be conclusively presumed to be at the residence address indicated on that person's currently filed affidavit of [voter] registration." The statute was enacted to allow elected officials to obtain a residence near Sacramento yet maintain, for voting purposes, their home district residence as their domicile. The question before us is whether this conclusive presumption applies even if the address listed on the affidavit of registration is not one of the legislator's legal residences. We conclude it does not and grant the People's petition for writ of mandate.
On March 14, 2007, real party in interest, Roderick Wright, filed a voter registration form in which he declared under penalty of perjury that he "liv[ed]" in one of five units at an apartment complex on Glenway Drive in the City of Inglewood. The property was in the 25th senatorial district ("the District"). In November 2008, Wright was elected as the state senator to represent the District. Thereafter, he cast votes in the District on two occasions - May 19 and September 1, 2009.
There was substantial evidence presented to the grand jury supporting the People's theory that, when Wright cast those votes, he owned and rented the Glenway property to others while he lived in the 26th senatorial district - at a residence on Don Milagro Drive. That evidence included, but was not limited to, the following: (1) although an occupant of the unit Wright specified as his residence (Wanda Sanders) testified Wright shared a room with a female, the bedding in the room was "off pink" and the closet contained only the belongings of a woman; (2) Sanders eventually told an investigator that Wright did not live at the Glenway address; (3) a tenant in one of the units at the Glenway complex indicated Wright lived on Don Milagro Drive and was only seen at the apartment building to retrieve rent; (4) the electric bill for the common areas at the Glenway property was sent to Wright at an address on Don Milagro Drive; (5) Wright held title to his Don Milagro Drive residence; (6) a search of the Don Milagro Drive residence revealed numerous personal items and clothes belonging to Wright; and (7) assembly and senate records never listed the Glenway property as Wright's home address.
Because the evidence presented to the grand jury demonstrated probable cause that, as a state senator, Wright voted in the District while he was domiciled outside of the District, he was indicted for, inter alia, two counts (counts 7 and 8) of casting a fraudulent vote in violation of section 18560, subdivision (a). He filed a motion to dismiss the charges pursuant to Penal Code section 995. The basis for the motion was that, prior to casting the votes at issue, Wright completed a voter registration form wherein he listed as his residence an address located in the District, i.e., the Glenway address. It was Wright's primary position that, irrespective of evidence that he did not reside in the District when he voted, he could not be prosecuted for these offenses because section 2026 provided a conclusive presumption that the domicile of a member of the Legislature is deemed to be that which is indicated on the legislator's affidavit of voter registration.
The trial court reluctantly dismissed those charges, finding it was bound by the conclusive presumption. The People filed a petition for writ of mandate on May 2, 2011 and, on May 9, 2011, we issued an order to show cause directing respondent to address why the relief prayed for in the petition should not be granted.
"When we review a [Penal Code] section 995 motion, we . . . conduct an independent review of the evidence . . . . We will not set aside an information [or an indictment] 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' [Citation.]" (People v. San Nicholas (2004) 34 Cal.4th 614, 654; see also People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690, 698-699.)
B. The Conclusive Presumption
Section 2026 provides, "The domicile of a Member of the Legislature . . . shall be conclusively presumed to be at the residence address indicated on that person's currently filed affidavit of registration." (Italics added.) The Legislature has articulated a stark difference between a person's domicile and a person's residence.
A domicile is described as a "fixed" place of habitation - one in which the person has "an intention of remaining" or, if absent, an "intention of returning." (§ 349, subd. (b).) Importantly, "[a]t a given time, a ...