Hartman

Petitioner seeks a writ of mandate directing respondent court to grant his motion to set aside a criminal information pending against him.

Facts

Petitioner stands accused by information of felonious burglary in violation of Penal Code section 459.

The preliminary hearing evidence shows that between 8:30 and 9 a.m. on a Thursday petitioner broke into an unoccupied mobilehome, which was used mainly on weekends, and took something, probably a small amount of food.

After the evidence had been adduced, petitioner moved the magistrate to reduce the felony burglary charge to a misdemeanor pursuant to Penal Code section 17. His attorney argued that the facts of the crime and petitioner’s prior criminal record justified such a reduction.

After the prosecutor argued against the motion, the following dialogue occurred:

Petitioner was held to answer for felony burglary.

Petitioner moved respondent court to set aside the information upon the ground, inter alia, that he was illegally committed because the magistrate inquired whether he would plead guilty to a misdemeanor. The motion was denied.

Discussion

Review by writ of mandate is proper. (See People v. Pompa-Ortiz (1980)…