People v. Superior Court (Kizer)

Opinion

POCHÉ, Acting P. J.

Larry Lee Kizer and Larry Edward Lowery, real parties in interest herein, were charged by information with offenses arising from the theft of integrated circuits. They were charged with counts of both theft and receiving stolen property and with enhancements of both offenses pursuant to section 12022.6 of the Penal Code,

1

a section which provides increased punishment for “excessive taking.” On March 15, 1983, real parties moved, inter alia, to strike the “excessive taking” allegations of counts three and five—counts of receiving stolen property in excess of $100,000 and attempting to receive stolen property in excess of $100,000. The motion was granted on August 3, 1983.

On August 11, 1983, the People filed a notice of intention to file a petition for writ of mandate and on September 22, 1983, filed a timely notice of appeal. Apparently realizing belatedly that the order sustaining a demurrer to less than all of the counts of an information is not appealable

(People

v.

Yoshimura

(1976) 62 Cal.App.3d 410, 413 [133 Cal.Rptr. 228]), the People filed the instant petition for writ of mandate on March 23, 1984.

Real party Kizer opposes the petition as untimely. Where there is no statutory time limit for the filing of a petition for extraordinary relief, this court will ordinarily consider a petition untimely when filed after the 60-day period applicable to appeals but is not required to do so.

(People

v.

Superior Court (Duran)

(1978) 84 Cal.App.3d 480, 489 [148 Cal.Rptr.

[935]

698].) In the instant case, the People acted promptly to challenge the ruling on the demurrer, filing both a notice of intention to seek a writ of mandate and a notice of appeal. The Legislature has indicated its intention to give the People a right to appellate review of a trial court decision on a demurrer. (Compare