Hello again ccdc. Was away at court today and just back online here. Will catch up on your questions:
The lower court was hesitant at firs and asked questions and dismissed without prejudice, suggesting that I wait until after prelim. Then I renewed, showing them that the DA was using the two unrelated charges as leverage in order to get a settlement in their favor. They denied without further comment, wich led me to this appeal. I think that the fact that they had questions and were reluctant to outright dismiss it initially means it is ripe for appeal. As you stated before, this is a clear case of misjoindering. What do you think?
By "lower court" here I assume you mean the district court of appeal (just FYI, appellate lawyers and justices
typically use the term "lower court" to refer to the trial
court and "appellate court" or "DCA" to refer to the court of appeal). I'm not sure why the court would have suggested waiting until after the prelim -- if the charges are improperly joined, they are improperly joined both pre- and post-prelim. Perhaps they had in mind the fact that you could challenge the improper joinder by way of a 995 motion after prelim.
It is always tricky trying to read into the minds of the justices when they make a ruling without an explanation. I wouldn't make too much of the fact that they initially seemed reluctant to dismiss outright.On expert said that I am being "hard lined" because I have now added hard evidence of an extotion attempt by the alleged victim and the da still won't dismiss the case? I have however manged to keep them at bey for a year now.....
Whoever said that was probably right -- sometimes a particular DA will get an "attitude" about a particular defendant, for whatever reason, and will handle a case differently than it would normally be handled. It is of course also possible that the particular DA involved has a good faith belief in what (s)he is being told by the alleged victim and is being hard-nosed for that reason. Nevertheless, as I mentioned in my original responses to your questions, the joinder here is of highly questionable validity.
Is the actual appeal due in ten days, or simply a notice of appeal? The state capitol is over two hours away and I'm still working on the breif....sorry for so many questions.... I also just learned from the Supreme Court Clerk that the ten day rule does not apply to writs of mandate or prohibition....?
Technically, seeking review of a decision by the DCA, the filing in the Supreme Court is called a "petition for review" rather than an "appeal". You can see the rules for such petitions here (California Rules of Court, Rule 8.500):http://www.courtinfo.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_500
Note that the ten day rule is in subdivision (c) of Rule 8.500 and applies from the date the DCA decision is final (which is typically 30 days after it is announced). The ten day rule applies to the filing of the petition for review. See Rule of Court 5.504, subd. (b), for what must be field with a petition for review:http://www.courtinfo.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_504
On the other hand, a writ petition can be filed directly in the Supreme Court, rather than seeking review of the DCA order. See Rule of Court 8.485 here:http://www.courtinfo.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_485
What the clerk is referring to is that you can file a petition for a writ of mandate directly to the Supreme Court and such a filing would not be subject to the ten day rule (because it is an original petition rather than a petition for review). The rules for filing such a petition are in Rule of Court 8.486, which you can see here:http://www.courtinfo.ca.gov/cms/rules/index.cfm?title=eight&linkid=rule8_486
Note the requirement in subdivision (a)(1) of this rule regarding filing in the lower court (that is, the DCA). If filing an original petition for writ, you have to explain what happened in the DCA when you filed there.
Here is a link to the index for Title Eight of the Rules of Court, which includes all of the provisions I liked above, as well as all other appellate rules applicable in the courts of appeal and the supreme court. You can navigate to any of the individual rules from this page:
Thanks for accepting the previous answer. If you have any more questions about this, please let me know.