Provencher v. Municipal Court for North County Judicial District

Opinion

BROWN (Gerald), P. J.

Robert F. Provencher appeals a judgment denying his petition for a peremptory writ of mandate to compel the municipal court to strike a prior drunk driving conviction in his prosecution on a current charge of drunk driving.

The superior court reached the merits of Provencher’s petition. We decline that invitation and in so doing, suggest the trial court, as a matter of policy, should have declined also. This suggestion is without any implication the trial court ruled erroneously. The implication is that the trial court erroneously ruled (on the merits).

Insofar as the record before this court discloses, Provencher has yet to be tried even though the complaint in his case was filed June 3, 1976. Before he petitioned the superior court for mandate, he had moved the municipal court to strike the prior conviction. The municipal court’s denial of that motion was not an appealable order, but was an interim order reviewable on an appeal from the judgment once judgment is entered. That remedy is adequate.

We said in

Hogya

v.

Superior Court,

75 Cal.App.3d 122, 128-129 [142 Cal.Rptr. 325]:

“Where an order is not appealable, but is reviewable only upon appeal from a later judgment, various factors must be considered in evaluating

[134]

the adequacy of the appellate remedy [citation]. Such factors include, without being limited to, the expense of proceeding with trial

(id),

prejudice resulting from delay

(id.),

inordinate pretrial expenses [citation], and the possibility the asserted error might not infect the trial [citation], and the possibility the asserted error might be corrected in a lower tribunal before or during

trial

[citation], A remedy is not inadequate merely because more time would be consumed by pursuing it through the ordinary course of law than would be required in the use of an extraordinary writ. [Citations.]