OrderCal. Super. - 6th Dist.August 16, 2021KOOONONUI-PUJNH NNNwwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>WNHOKOOONONMJ>WNHO Filed August 18, 2021 Clerk of the Court Superior Court of CA County of Santa Clara SUPERIOR COURT OF CALIFORNIA 21 Ap002744 COUNTY 0F SANTA CLARA BY: raragon APPELLATE DIVISION THE PEOPLE OF THE STATE OF CALIFORNIA, N0. 21AP002744 Petitioner, Trial Ct N0. C2017455 V. SUPERIOR COURT, COUNTY ORDER DENYING PETITION FOR OF SANTA CLARA, (Limited Jurisdiction), WRIT OF MANDATE OR PROHIBITION Respondent, CYNTHIA LIDDY, Real Party in Interest. On June 11, 2021, acting under the perceived authority 0f Penal Code section 1001 .95, respondent Superior Court orally granted real party in interest Cynthia Liddy diversion in a misdemeanor case alleging counts 0f driving under the influence (DUI). (Veh. Code, §§ 23 152 & 23 1 53.) On August 16, 2021, petitioner the People filed in this court a petition for writ 0f mandate 0r prohibition t0 challenge this order, contending that Vehicle Code section 23640 categorically prohibits diversion in DUI cases notwithstanding the provisions 0f Penal Code section 1001 .95. Thus, the petition was filed 66 days after the challenged court order was made. We deny as untimely the petition for writ 0f mandate or prohibition, and all relief requested therein. A non-statutory petition for writ 0f mandate must generally be filed within the same time period designated for filing a notice 0f appeal, here within 30 calendar days 0f the making 0f the order. (Cal. rules 0f Court, rule 8.853(a); Reynolds v. Superior Court (1 883) 64 2 1 AP002744 KOOONONUI-PUJNH NNNwwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>WNHOKOOONONMJ>WNHO Cal. 372, 373 [where n0 statute specifies a particular time, writ petition generally must be filed within period applicable t0 appeals unless extraordinary circumstances have intervened]; Labor & Workforce Development Agency v. Superior Court (2018) 19 Cal.App.5th 12, 24 [same]; see also Santa Clara County Local Rules, Appellate Rule 2.1.) “ ‘An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion t0 deny a petition filed after the [30-day] period applicable t0 appeals, and should d0 so absent 3” “extraordinary circumstances” justifying the delay. (Volkswagen ofAmerica v. Superior Court (2001) 94 Cal.App.4th 695, 701-702.) Denial 0n the basis 0f untimeliness is appropriate even in the absence 0f prejudice t0 the opposing party. (Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499 (P0pelka).) Here, petitioner offers in footnote 2 0f the petition that it ordered the reporter’s transcript 0f the June 11, 2021 hearing 0n that day, but that the transcript was not received until July 27th. We note that writ petitions are routinely filed in time while the party seeking relief awaits a reporter’s transcript, with the petition including a declaration 0f counsel as t0 what occurred at the hearing and an estimated date for receipt 0f the transcript. Further, petitioner does not explain the delay between July 27, 2021, when the transcript was received and August 16, 2021, when the petition was filed. This period was 20 days-two-thirds 0f the original deadline. Petitioner further contends that real party in interest is not prejudiced by the delay because “the next review date is December 10, 2021,” ignoring any actions that real party has already taken in compliance with the court’s order in the nearly two months since diversion was ordered and any costs she may have incurred. And again, denial 0f an untimely petition is appropriate even in the absence 0f prejudice t0 the opposing party. (Popelka, supra, 107 Cal.App.3d at p. 499.) 21AP002744 \OOONONUI-PUJNH NNNNNNNNNt-tt-th-th-tu-tp-tp-tu-tu-tu-t OOQONUI-PUJNHOCOOQONUI-PUJNHO As the petition is untimely and n0 extraordinary circumstances have been shown t0 justify the delay, the petition is accordingly denied. Dated: August 18, 2021 Dated: August 18, 2021 Dated: August 18, 2021 21AP002744 M M Hon. Frederick S. Chung Acting Presiding Judge, Appellate Division / 1. Hon. Helen E. Williams Judge, Appellate Division ‘ Hon. Alma; Jarvqngi-Sani Judge, Appellate Division SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 951 13 CIVIL DIVISION FILE COPY RE: People vs Santa Clara County Superior Court Case Number: 21AP002744 I C201 7455 PROOF OF SERVICE Order Denying Petition for Writ was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court’s TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on August 18, 2021. CLERK OF THE COURT, by Rachel Aragon, Deputy. cc: San Jose Facility - Criminal Santa Clara County Superior Court 191 N First Street San Jose CA 951 13 Commissioner Benjamin Williams Santa Clara County Superior Court 191 N First Street San Jose CA 95113 Kaci R Lopez District Attorneys Office 7O W Hedding St West Wing 6th Floor San Jose CA 951 10 Lisa G Herrick Santa Clara County Superior Court 191 N First ST San Jose CA 951 13 Palm Tim 819 Eddy ST San Francisco CA 94109-7701 cw-9027 REV 12/08/16 PROOF OF SERVICE Filed August 18, 2021 County of Santa Clara Superior Court of CA Clerk of the Court 21AP002744 By: raragon
