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Quintor v. Municipal Court for San Leandro-Hayward Judicial District of Alameda County6/16/1982
reached the merits and concluded that the Fremont prior was valid.
When that motion was denied, appellant did not seek relief in mandamus from the superior court. Instead, the prosecution, without objection, moved to strike the Fremont prior, and the Hayward court granted the motion. Appellant then entered a plea of nolo contendere and the court found him guilty. Appellant did not file an appeal from the judgment of conviction in Hayward, nor did he move to set aside his nolo plea in Hayward. Instead, he waited for five months and petitioned the
superior court for a writ of mandate directing the Hayward court to grant his motion to strike the Fremont prior.
The superior court properly denied the petition because it was being asked to compel the Hayward Municipal Court to act in a case as to which it had long ago lost jurisdiction. The five month old judgment of conviction had not been appealed from: it was final. For this reason Hayward lacked jurisdiction to review or reconsider interlocutory motions.
Mandate will not lie to compel action which is not within the court's jurisdiction or where the court no longer has the power to perform the act sought to be compelled. (Treber v. Superior Court (1968) 68 Cal. 2d 128, 134-136 [65 Cal. Rptr. 330, 436 P.2d 330]; Franklin v. Municipal Court (1972) 26 Cal. App. 3d 884, 898 [103 Cal. Rptr. 354]; Daniels v. Superior Court (1955) 132 Cal. App. 2d 700, 701 [282 P.2d 1000]; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 67, pp. 3845-3846, (supp. 1981) p. 129.)
The trial court properly denied the petition for writ of mandate to compel the Hayward court to do that which it did not have the power to do.
The judgment is affirmed.
Disposition
The judgment is affirmed.
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