## Facts

- Stanford W. Ascherman, a physician, sought appointment to the medical staff of Marin General Hospital.
- During the administrative proceeding on his application, a witness, Vivian Schandelmeier, allegedly gave false testimony under oath.
- Ascherman requested that Marin County District Attorney Bruce Bales prosecute Schandelmeier for perjury.
- Bales declined to initiate a perjury prosecution.
- Ascherman petitioned for a peremptory writ of mandate to compel Bales to file and prosecute perjury charges.
- For purposes of the mandamus proceeding, the alleged perjury was treated as admitted because the verified allegation was not denied in the return.

## Issues

1. Whether mandamus may compel a district attorney to initiate and prosecute a criminal charge when the prosecutor has decided not to proceed, absent a statute creating a mandatory duty to prosecute.
2. Whether Government Code § 26501 imposes a ministerial duty enforceable by mandate to prosecute alleged public offenses upon receiving information of their commission.

## Decision

- The Court of Appeal affirmed the superior court’s denial of the peremptory writ.
- The court held that the decision to investigate and prosecute is discretionary and cannot be controlled by mandamus absent a statute clearly making prosecution mandatory.
- The court construed Government Code § 26501 as not eliminating prosecutorial discretion, despite its use of “shall.”

## Legal Principles

- Mandamus requires a clear, present, ministerial duty; it does not lie to compel acts committed to prosecutorial judgment and discretion.
- A district attorney’s charging decision is discretionary and generally not subject to judicial compulsion.
- Government Code § 26501 does not create an enforceable duty to prosecute every alleged offense reported by a private complainant.
- If a prosecutor’s refusal to act constitutes willful or corrupt misconduct, the remedy lies in proceedings addressing official malfeasance or nonfeasance, not in a writ directing a specific prosecution.

## Conclusion

The court held that a private party cannot use mandamus to force a district attorney to file and pursue criminal charges because charging decisions remain discretionary unless the Legislature plainly imposes a mandatory prosecutorial duty.


Ascherman v. Bales, 273 Cal. App. 2d 707, 78 Cal. Rptr. 445 (Ct. App. 1969)