Nelson v. Superior Court

California Court of Appeal Jan 25, 1947 No. Civ. 7304Published

Before: Peek

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Holding. The court held that mandamus is not an appropriate remedy to challenge a trial court's denial of a motion to set aside an information because the trial court acted within its jurisdiction, and the petitioner has an adequate remedy via appeal from a potential judgment of conviction.

Issues

Whether mandamus may be used to control the judicial discretion of a superior court that has already acted upon a motion to set aside an information.
Whether the denial of a motion to set aside an information is reviewable on appeal from a judgment of conviction, thereby precluding mandamus.

Disposition. denied

Quotations verified verbatim against the opinion

“the court “may be compelled to act jurisdictionally but cannot by that-means be compelled to act correctly.””

“if the court has so acted, however erroneous such action may be, its order made pursuant thereto cannot be corrected by means of writ of mandamus.”

“such an order is reviewable on an appeal from a judgment of conviction.”

PEEK, J.

By mandamus petitioner seeks an order of this court commanding respondent superior court to grant his motion previously made in said court to set aside an information charging him with the crime of robbery. The sole ground for said motion both in the respondent court and here is that at the preliminary hearing of petitioner on said charge he “was not properly advised of his constitutional rights.”

The petition alleges that at the preliminary examination the committing magistrate purported to inform petitioner of his constitutional rights including the right to aid of counsel but that said magistrate did so in a manner which was not in strict conformance with the requirement of article I, section 8 of the Constitution of this state.

It is petitioner’s contention that inasmuch as all of the provisions of the Constitution are mandatory unless specifically declared to be otherwise, and inasmuch as said article I, section 8 states categorically what information on these fundamental matters must be given to an accused person, the precise constitutional language must be used, and therefore the alleged failure of the magistrate to advise petitioner in such language placed upon respondent court an absolute non-discretionary duty in acting upon petitioner’s

[785]

motion to set aside the information. Petitioner further alleges that he has no plain, speedy or adequate remedy at law.

Respondents’ reply denies the material allegations of the petition and in their points and authorities filed in support of their demurrer and answer, they argue (1) that mandamus cannot be invoked to correct alleged errors of a court in passing upon questions regularly submitted to it in the ordinary course of judicial proceedings; (2) that mandamus will not lie where there is an adequate remedy at law, and (3) that in any event petitioner was fully advised of his constitutional rights by the committing magistrate.

Prom the record before us it appears that the respondent court did not refuse to act upon petitioner’s motion to set aside the information. To the contrary a hearing was had thereon, evidence was taken, and a formal order was entered. In other words this is not a case where a court has refused to act at all in the premises, but rather it is a case where a court has acted judicially and its order, whether or not ill advised, still was one which it was empowered to make.

Nelson v. Superior Court

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PEEK, J.

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