People v. Superior Court

Opinion

BRAY, J.

*

The People of the State of California petition for writ of mandate to set aside the order of the Santa Clara County Superior Court to suppress evidence.

Question Presented

Was the petition filed in time? No.

Record

Real parties in interest were charged in the municipal court with violation of Health and Safety Code section 11912. Real party Martinez was also charged with violation of section 11530. After a preliminary examination all three were held to answer in the superior court. On June 16, 1972, an information was filed in the Santa Clara County Superior Court charging them with the above stated offenses. On August 14, the date originally set for trial, their motion to suppress evidence pursuant to Penal Code section 1538.5 was granted.

1

The court on the same day reassigned the case for trial to the master calendar “to trail” on August 21. On that date it was set “to trail” on September 11. On that date it was continued to a later date. On September 13, the People filed this petition for writ of mandate.

The petition for writ of mandate was filed too late. Section 1538.5 of the Penal Code provides, in pertinent part: “(o) Within 30 days after a defendant’s motion is granted at a special hearing in the superior court, the people may file a petition for writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure motion. If the trial of a criminal case is set for a date which is less than 30 days from the granting of a defendant’s motion at a special hearing in the superior court, the people, if they have not filed such a petition and wish to preserve their right to file such a petition, shall file in the superior court on or before

[138]

the trial date

or

within 10 days after the special hearing, whichever occurs last, a notice of intention to file such a petition and shall serve a copy of the notice upon the defendant.”