Ascherman v. Bales

[708]

MOLINARI, P. J.

This is an appeal from a minute order denying plaintiff’s motion for a peremptory writ of mandate to compel the District Attorney of Marin County to initiate and prosecute a charge of perjury against Vivian Schandelmeier. The basis of the instant petition is the uncontradicted verified allegation that Schandelmeier gave perjured testimony in an administrative proceeding involving the application of plaintiff, a physician and surgeon licensed to practice in California, for admission to the medical staff of Marin General Hospital.

Although this allegation must be taken as admitted because it was not denied by respondent

(Ertman

v.

Municipal Court,

68 Cal.App.2d 143, 149 [155 P.2d 908, 156 P.2d 940]), we are constrained to hold that there is no merit to petitioner’s contention that the failure of the district attorney to prosecute, although requested by plaintiff to do so, was an abuse of discretion which may be remedied by writ of mandate. It is well established that, except where a statute clearly makes prosecution mandatory, a district attorney is vested with discretionary power in the investigation and prosecution of charges and a court cannot control this discretionary power by mandamus.

(Board of Supervisors

v.

Simpson,

36 Cal.2d 671, 675-676 [227 P.2d 14];

Boyne

v.

Ryan,

100 Cal. 265, 267 [34 P. 707];

Taliaferro

v.

Locke,

182 Cal.App.2d 752, 755-757 [6 Cal.Rptr. 813];

Taliaferro