I called Allan Dollison. In addition to his comments below about the defense needing to file a writ not an appeal, he said that the writ needs to be filed within 15 days of the 995 motion being denied. Judge Marilyn Miles ruled on December 17, 2015.
The case in which Mr. Neal Sanders won the 995 motion was Rodney Ortiz's local case.
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2130501&doc_no=A147247.
Court data last updated: 01/18/2016 02:41 PM
Docket (Register of Actions)
| The People v. Meserve Division 1 |
| Case Number A147247 |
| Date | Description | Notes |
|---|---|---|
| 01/13/2016 | Notice of appeal lodged/received (criminal). |
- Allan DollisonJanuary 17, 2016 at 4:36 PMJohn: The technical term for an appeal of the denial of a 995 is s Writ of Mandamus, since there are no "appeal rights" from the denial of a 995. They tend to be a lot quicker, since they are not full blown appeals. It is not uncommon that after a filing a writ within a matter of days you get a one sentence order back saying: "The petition for Writ of Madamus is hereby denied." Neal Sanders just got one granted, so they are not impossible. As you point out the intention of filing one might get a continuance of the trial unless they take quick action on it which as I mentioned is almost always a denial, when it is quick.ReplyDelete
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Thanks Allan. I quoted what was said in court by Russell Clanton. This is good to know for future posts.ReplyDelete
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John, so interesting I checked the Court of Appeal website and noticed that a Notice of Appeal was in fact filed, not a Writ of Prohibition.ReplyDelete
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2130501&doc_no=A147247.
That is not correct. The only thing that was correct to have been filed was a petition for a Writ of Prohibition, pursuant to California Penal Code section 999a, which holds in its pertinent part as follows:
"999a. A petition for a writ of prohibition...must be filed in the appellate court within 15 days after a motion made under Section 995 to set aside the indictment on the ground that the defendant has been indicted without reasonable or probable cause or that the defendant had been committed on an information without reasonable or probable cause, has been denied by the trial court."
This procedure was affirmed in the case of Smith v. Superior Court (1978) 76 Cal.App.3d 731, which held "If he elects to proceed under section 995 and his motion is denied, he may seek immediate appellate review by a petition for a writ of prohibition filed in the appellate court within 15 days after his motion is denied. (Pen. Code, § 999a.)"
There is no appeal of a denial of a 995 Motion because it is not a final judgment or otherwise appealable order. An immediate Motion to Dismiss needs to be brought as this is frivolous and is not the right procedure. So Mr. Clanton was correct in Court saying that he had filed an appeal of the court's denial of the 995 motion. Again, filing a 1-page Notice of Appeal when you have no legal right to do so is improper.
