Dale

PREMO, Acting P.J.

Defendant Melvin Frederick Dale pled no contest to possessing cocaine and being under the influence of a controlled substance. Thereafter, the court as trier of fact found "not true" the allegation that he suffered a "strike" prior in Alameda County in 1991. (Pen.Code, §§ 667, subds.(b)(i), 1170.12.) [1] The court did not believe the victim's preliminary hearing testimony that defendant slashed at her with a bottle during an assault (§ 245, subd. (a)(1), hereafter § 245(a)(1)) and therefore found the evidence insufficient to show personal use of a deadly or dangerous weapon. The People appeal contending that the judge "erred as a matter of law in reweighing the evidence and judging the credibility of the victim who was not before him" and in substituting his judgment for that of the magistrate at the preliminary hearing. We have requested that the parties brief the issue whether section 1238 authorizes a People's appeal of the trial court's order.

On June 17, 2001, defendant was arrested in San Jose for possession of cocaine and being under the influence of a controlled substance. He was charged with violating Health and Safety Code section 11350 (possession…