28 Cal.App.5th Supp. 1, 18000519, Smith v. Superior Court (San Francisco Police Department)
|Citation:||28 Cal.App.5th Supp. 1, 239 Cal.Rptr.3d 256|
|Party Name:||Robert T. SMITH, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; San Francisco Police Department, Real Party in Interest.|
|Attorney:||Lara Bazelon for Petitioner. No appearance for Respondent. Ronnie M. Wagner, San Francisco Police Department Legal Division, for Real Party in Interest. COLFAX, Acting P. J., Appellate Division, BEGERT, J., Appellate Division, HITE, J., Appellate Division|
|Case Date:||August 16, 2018|
|Court:||Superior Court of California|
[239 Cal.Rptr.3d 257] ORIGINAL PROCEEDINGS in petition for writ mandate to vacate order denying non-statutory motion to return property entered by Superior Court, County of San Francisco, Robert M. Foley, Judge. (Retired Judge of the Santa Clara S.Ct. assigned by the Chief Justice pursuant to art. IV, § 6 of the Cal. Const.) Petition GRANTED. Writ No. APP-18-008417.
Lara Bazelon for Petitioner.
No appearance for Respondent.
Ronnie M. Wagner, San Francisco Police Department Legal Division, for Real Party in Interest.
COLFAX, Acting P. J., Appellate Division, BEGERT, J., Appellate Division, HITE, J., Appellate Division
ORDER GRANTING WRIT OF MANDATE
DECISION BY THE COURT
[239 Cal.Rptr.3d 258] On April 26, 2018, Robert T. Smith filed a petition for writ of mandate, seeking review of the lower courts denial of his non-statutory motion to return property, to wit 21.8 grams of recreational marijuana. After considering the evidence, arguments and applicable law, we hereby GRANT the petition for writ of mandate. We hereby order the lower court to vacate its previous order denying the motion for return of property, and enter a new order consistent with this decision.
FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2018, SFPD Officer MacMahon responded to 923 Market Street to investigate a report of a man making threats with a possible gun. Officer MacMahon ultimately arrested petitioner. Officer MacMahon performed an inventory search of petitioners backpack, seizing 21.8 grams of marijuana and $574.21 in cash. On January 11, 2018, petitioner was charged by misdemeanor complaint with two counts of criminal threats (Pen. Code, § 422) and one count of disturbing the peace (Pen. Code, § 415, subd. (3) ). These charges were dismissed pursuant to Penal Code section 1385 on March 7, 2018.
On April 10, 2018, the lower court heard and denied petitioners motion to return the marijuana. Petitioner timely filed the instant petition for writ, seeking the return of his 21.8 grams of recreational marijuana. On May 16, 2018, we ordered the San Francisco Police Department to show cause why it should not be ordered to return petitioners property under City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 68 Cal.Rptr.3d 656 and any other applicable law.
The proper avenue of redress for denial of a defendants nonstatutory motion to...
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