The opinion
POCHE, J.
I dissent. Health and Safety Code 1 section 11488.4, subdivision (h) (hereinafter subdivision (h)), provides in pertinent part: “If there is an underlying or related criminal action, a defendant may move. . . for the return of the property on the grounds that there is not probable cause to believe that the property is forfeitable pursuant to subdivisions (a) to (g), inclusive, of Section 11470 and is not automatically made forfeitable or subject to court order of forfeiture ... by another provision of this chapter. The motion may be made at the preliminary examination or subsequent thereto. ... [If] Within 15 days after a defendant’s motion is granted, the people may file a petition for a writ of mandate or prohibition seeking appellate review of the ruling.”
Each of the criminal defendants who are among the real parties in interest to this petition was affected by identical documents denominated “Complaint And Petition For Forfeiture (Health And Safety Code Section[s] 11470[,] 11488.4 & 11488.5 et seq.)” filed by the district attorney. Each of those defendants filed in the municipal court a separate “Motion For Return Of Property” on the ground that “release of the funds is necessary to enable defendants to retain counsel of their respective choosing and that *502 [the] forfeiture provisions pursuant to which the funds are purportedly being held are not constitutionally applicable to funds necessary for bona fide legal services.” Each of these motions argued that the district attorney’s right to have the funds declared forfeit pursuant to the forfeiture statutes of. the Health and Safety Code were subordinate to the defendant’s constitutional right to secure counsel of his or her own choosing. The clear import of these motions is that, within the meaning of subdivision (h), defendants were arguing that “there is not probable cause to believe that the property is forfeitable pursuant to . . . Section 11470” and that the funds were “not automatically made forfeitable or subject to court order of forfeiture.” The motions were therefore the type of motions authorized by subdivision (h), one of the statutes invoked by the district attorney. When the municipal court accepted defendants’ arguments and ordered the funds released, its orders were the functional equivalents of the rulings which that same statute made reviewable by way of petitions for extraordinary relief, if filed within 15 days.
Because the release orders were made by the municipal court, the district attorney followed the procedure of subdivision (h) by seeking extraordinary relief from the next higher court in the judicial hierarchy—the superior court. (Had the orders been made by the superior court, an alternative clearly contemplated by the statute’s plain language authorizing a motion for release to be made subsequent to the preliminary examination, the obvious avenue for “appellate review” would be to this court.) The majority admits that the delay between the municipal court’s orders and the filing of the people’s petition in the superior court varied from 28 to 87 days. (Majority opn., ante, p. 496, fn. 4.) The district attorney’s petitions were therefore beyond the jurisdictional competence of the superior court to act and its ability to order effective relief. (Cf. People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749, 752-753 [ 160 Cal.Rptr. 455 ].)
If a writ of mandate is to issue from this court, we must be satisfied that the superior court failed to perform a clear, present, and ministerial duty to compel the municipal court to set aside the release orders. (See Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507 [ 204 Cal.Rptr. 711 , 683 P.2d 710 ]; Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 622 [ 230 Cal.Rptr. 42 ].) Several principles establish that this requirement cannot be met.
First, “[m]andate may not issue to compel action which is not within the court’s jurisdiction.” (Daniels v. Superior Court (1955) 132 Cal.App.2d 700, 701 [ 282 P.2d 1000 ]; accord Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 898 [ 103 Cal.Rptr. 354 ].) Second, and in a related vein, mandate “will not lie to compel the performance of any act which would be *503 void, illegal or contrary to public policy.” (Duffy v. City of Gardena (1980) 108 Cal.App.3d 930, 936 [ 167 Cal.Rptr. 4 ]; accord Swan v. Civil Service Commission (1971) 16 Cal.App.3d 710, 713 [ 94 Cal.Rptr. 236 ].) As with such statutes as Penal Code sections 995 and 1538.5, subdivision (h) evidences the Legislature’s goal of establishing an orderly and unified procedure governing resolution of forfeiture claims. That procedure includes provisions for (1) those claims to be initially ruled upon by a lower court and (2) obtaining prompt appellate review of lower court rulings. (See People v. Belleci (1979) 24 Cal.3d 879, 884-885 [ 157 Cal.Rptr. 503 , 598 P.2d 473 ] [construing Pen. Code, § 1538.5]; People v. Harris (1967) 67 Cal.2d 866, 870-871 [ 64 Cal.Rptr. 313 , 434 P.2d 609 ] [construing Pen. Code, § 995].) Subdivision (h) gives the prosecution the right to petition for extraordinary relief should a lower court order the release of property the prosecution wishes to have declared forfeit, “but in the interest of the efficient administration of justice conditions that right upon its timely assertion.” (Pe ople v. Harris, supra, at p. 871 .)
Condoning untimely assertions of the prosecution’s right to seek appellate review would nullify the Legislature’s goal in enacting the procedure. It is for this reason that comparable limitation periods fixed by the Legislature have been treated as jurisdictional. (See Gomes v. Superior Court (1969) 272 Cal.App.2d 702, 704 [ 77 Cal.Rptr. 539 ] [re: the 30-day period of Pen. Code, § 1538.5]; Guerin v. Superior Court (1969) 269 Cal.App.2d 80, 82-84 [ 75 Cal.Rptr. 923 ] [re: the 15-day period of Pen. Code, § 999a].) Failure to comply with those periods requires refusal of extraordinary relief. (See Bernstein v. Superior Court (1955) 45 Cal.2d 774, 775 [ 291 P.2d 29 ] [Pen. Code, § 999a]; People v. Superior Court (1972) 29 Cal.App.3d 135, 138-139 [ 105 Cal.Rptr. 268 ] [Pen. Code, § 1538.5].)
Third, “it has been judicially established that the applicant for a writ of mandate must also show that the respondent has a present duty to perform the act he seeks to compel. [Citation.] Although this rule is most commonly invoked in denying an application to compel the performance of future acts [citations], it is equally applicable to acts which it is too late to perform [citation]. Thus mandate does not lie when the respondent no longer has the legal authority to discharge the alleged duty because the time for doing so, as specified by statute or ordinance, has expired.” (Treber v. Superior Court (1968) 68 Cal.2d 128, 134 [ 65 Cal.Rptr. 330 , 436 P.2d 330 ] [original italics].)
Application of these principles makes only one conclusion possible. The People’s right pursuant to subdivision (h) to seek appellate review of the municipal court’s release orders had terminated by the time petitions were actually filed in the superior court. Confronted by those untimely petitions, *504 the superior court had no jurisdiction to grant them. Its only possible course of action, its sole ministerial duty, was to deny them. This is precisely what it did. On what basis can it now be maintained that the superior court has a present ministerial duty to grant petitions concerning which it never had jurisdiction?
Today’s holding by the majority is achieved only at the expense of longstanding and well-settled principles governing the granting of extraordinary relief, and by the absolution of the People’s blatant failure to comply with the procedure established by our Legislature. This may well prove to be a Pyrrhic victory with damaging implications that will be regretted. For example, the law of this case is that the statutory 15-day condition on the People’s right to seek review of adverse forfeiture rulings has no force at all: the superior court must entertain such petitions filed as much as 72 days beyond that period. Curing the chaos this imposes upon the management of criminal trial calendars is left by the majority to later cases. Meanwhile this court becomes the first on its block to rule definitively on the constitutionality of the new forfeiture provisions of the Health and Safety Code.
Because I would deny the petition on the ground that the black letter requirements for mandate have not been met, there is no occasion for me to address the merits of the petition.
A petition for a rehearing was denied May 17, 1988. Poché, J., was of the opinion that the petition should be granted. The petition of real parties in interest Piet, Cascio, Clements and Calish for review by the Supreme Court was denied July 28, 1988. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.
Unless otherwise indicated, all further statutory references are to the Health and Safety Code.