City of San Jose v. Superior Court

• Decision Date: 21 September 1987
• Citation: 195 Cal.App.3d 743,240 Cal.Rptr. 882
• Parties: CITY OF SAN JOSE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent. Asan DABECIC, et al., Real Parties in Interest. H003451.
• Court: California Court of Appeals

Page 882

240 Cal.Rptr. 882

195 Cal.App.3d 743

CITY OF SAN JOSE, Petitioner, v.The SUPERIOR COURT of Santa Clara County, RespondentAsan DABECIC, et al., Real Parties in Interest.

H003451.

Court of Appeal, Sixth District, California.

Sept. 21, 1987.

Joan R. Gallo, City Atty., Laurence L. Spitters, Jr., Deputy City Atty., San Jose, for petitioner.

No appearance for respondent.

Carleen R. Arlidge, Rose & Arnold Law Corp., San Jose, for real parties in interest.

AGLIANO, Presiding Justice.

The City of San Jose(City) seeks writs of prohibition and mandate to nullify certain of respondentcourt's orders in three criminal prosecutions presenting similar stipulated facts.In each case, City police officers seized funds during drug-related arrests of real parties(defendants in the criminal cases) and then, without permission of the superior court and in violation of the mandate of Penal Code section 1536¹ requiring retention of custody of the seized property, the police turned the money over to Federal Drug Enforcement Agents (DEA's).The trial court granted real parties' non-statutory motions for return of property, ordering the City and its finance director to deliver to the clerk of the superior court for Santa Clara County sums totalling $58,440 to be held in trust pending further order.To avoid being cited for contempt, the City has paid this money into court.We stayed further proceedings on real parties' motions for return of the funds, because an order to turn the funds over to real parties would have made the money difficult or impossible to resecure.

We have determined the superior court had no jurisdiction within the confines of the criminal law and motion procedure to order the City to pay monies in lieu of that no longer in its possession, and therefore an extraordinary writ must issue ordering return of these sums to City.

RECORD

The stipulated facts are similar in each of the three cases and recite that the police were executing search warrants for the residences of real parties for the purpose of securing evidence for felony criminal prosecution of drug offenses.The officers seized large sums of money pursuant to the warrants, and then voluntarily and pursuant to "common practice" turned the money over to federal DEA agents acting pursuant to 21 United States Code section 881.There was never any state court order for the turnover of funds.Federal forfeiture proceedings are pending in the district court.

CONTENTIONS OF PARTIES

The City contends the superior court had no jurisdiction to order it to return money which is no longer in its custody but rather is in federal custody.It contends that once property seized under a warrant is transferred from the control of the court or the police, properly or improperly, the court loses custody of the property and has no further jurisdiction to entertain a non-statutory motion for return of the property in the criminal proceeding.(CitingPeople v. Icenogle(1985)164 Cal.App.3d 620, 210 Cal.Rptr. 575;In re 33rd Dist. Court(1984)138 Mich.App. 390, 360 N.W.2d 196.)The court may not fashion a civil remedy for the parties within the motion procedure.(CitingFranklin v. Municipal Court(1972)26 Cal.App.3d 884, 103 Cal.Rptr. 354.)

In its memorandum decision ordering City to turn over the monies to court custody, the court gave these reasons, which form the basis of real parties' position here: (1)the court has custody of property seized by a police officer under color of law to be used to prosecute the defendant(Gershenhorn v. Superior Court(1964)227 Cal.App.2d 361, 38 Cal.Rptr. 576); (2)the court has at all times had control over the money described in the warrant; (3)People v. Icenogle, supra, is not controlling because there the federal forfeiture proceedings were completed before the motion to return property was made, whereas here they are still pending; (4)In re 33rd Dist. Court, supra, is not controlling because the funds there were never in the court's custody--the seizure took place under a different form of statute providing such property be turned over to the state, county, or municipality whose officers seized it; (5) the City is estopped from denying the court's jurisdiction to make all appropriate orders concerning disposition of the funds, because it has ratified the officers' conduct and defended their allegedly illegal practice.Finally, there is no wrong without a remedy (citingCiv.Code § 3523 that "[f]or every wrong there is a remedy"); here section 1536 was violated; a remedy is appropriate.The court also relies on the inherent powers of courts, citing Code of Civil Procedure sections 128, subd. (a)and187.

The court cites three decisions as supporting its opinion: Gershenhorn v. Superior Court, supra, 227 Cal.App.2d 361, 38 Cal.Rptr. 576;Buker v. Superior Court(1972)25 Cal.App.3d 1085, 102 Cal.Rptr. 494;andPeople v. Superior Court(1972)28 Cal.App.3d 600, 104 Cal.Rptr. 876.

DISCUSSION

The decisions on which the trial court relied are not controlling here.Gershenhorn, supra, in addition to authorizing writ review of orders on nonstatutory motions for return of property, points out that property seized by police under the authority of a warrant is in the custody of the trial court for purposes of such a motion since it was taken for the court's purposes, i.e. to try the defendant.Gershenhorn does not raise or discuss the issue of what remedy is appropriate when the property has been given to a different jurisdiction or authority.

Buker, supra, similarly authorizes a nonstatutory motion for return of money seized in marijuana arrests and affirms the court's possession and control of such money by virtue of the warrant, in a situation where the money is still in the possession of the police or the court.

People v. Superior Court, supra, involved a motion for return of allegedly obscene materials after the defendant was acquitted of the obscenity charges.The material was retained by the police chief who would not release it.The Court of Appeal affirmed the Gershenhorn rationale that the property is seized under color of the court's authority and is therefore in its custody and properly returnable on motion, before or after the outcome of the trial.Again, the police still had possession of the property.The opinion does point out that if there are conflicting claims to the property, the trial court may rule on them, citing Franklin v. Municipal Court, supra, 26 Cal.App.3d 884, 103 Cal.Rptr. 354.Franklin was a case involving an exhibit, a gun, and the motion to return it was denied precisely because it was no longer in the municipal court's custody, as the People v. Superior Court decision, supra, notes.

People v. Icenogle, supra, 164 Cal.App.3d 620, 210 Cal.Rptr. 575, presents facts precisely like those at bench--a drug related arrest, seizure of money under a search warrant, followed by unauthorized release of the funds, contrary to section 1536, to DEA agents.The money was forfeited in federal proceedings.The decision holds that defendant may not use the non-statutory motion procedure to compel return of the funds because they are no longer in the custody of the court.Further, the decision says the criminal court has no jurisdiction to fashion a civil remedy for damages against the municipality or the police; the motion procedure is not available for that purpose.The court said, "When the trial court ordered appellants to reimburse Icenogle, it was essentially making an award of damages, a remedy not authorized in a criminal proceeding.Unlike the cases upon which the trial court and Icenogle rely, this is not an instance where the property at stake was in the possession of the court and thus was subject to a motion for release.[CitingiBuker, supra, andGershenhorn, supra.]Here, there was no res upon which the provisions of Penal Code section 1536 could operate....Accordingly, the court erred in trying to treat an alleged civil wrong within the parameters of a criminal proceeding."( People v. Icenogle, supra, 164 Cal.App.3d at p. 624, 210 Cal.Rptr. 575, fn. omitted.)

The trial court here distinguished Icenogle because there the federal forfeiture proceeding had been completed, whereas here, when the trial court ruled, the forfeiture was still proceeding in the federal district court.However, the Icenogle decision does not state that completion of the forfeiture was determinative; it was the loss of state possession of the funds that was determinative.Icenogle rests on the proposition that the non-statutory motion procedure is unavailable to compel return of property not in the respondent's possession, because to permit such a procedure is to bypass, without statutory authority, the normal civil remedies provided for such torts as conversion of property.

The opinion of the trial court said, "An order requiring return of money to the custody of the court from which it was taken does not create a civil remedy for defendant.It merely restores the res so that the court can entertain, and, after a full and fair hearing, rule upon defendant's motion for return of property."

The problem with this analysis is that when the court ruled there was no longer a res in court custody which could be ordered restored.Since the trial court cannot control the federal agents nor the federal district court, it does not presently have...