People v. $25,000 U.S. Currency

• Decision Date: 29 June 2005
• Docket Number: No. A106116.,A106116.
• Citation: 31 Cal.Rptr.3d 637,131 Cal.App.4th 127
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. $25,000 UNITED STATES CURRENCY, Defendant; Paul L. Fields, Jr., Defendant and Appellant.

31 Cal.Rptr.3d 637

131 Cal.App.4th 127

The PEOPLE, Plaintiff and Respondent, v. $25,000 UNITED STATES CURRENCY, Defendant Paul L. Fields, Jr., Defendant and Appellant.

No. A106116.

Court of Appeal, First District, Division 4.

June 29, 2005.

Margaret May Fleming, District Attorney's Office, Eureka, CA, Gary W. Schons, Office of Attorney General, San Diego, CA, for Plaintiff-Respondent.

David Martin Michael, Law Ofcs. of David M. Michael, San Francisco, CA, Mark P. Harris, Arcata, CA, Ean Vizzi, Law Ofcs. of Nick & Vizzi, San Francisco, CA, for Defendant-Appellant.

SEPULVEDA, J.

The police seized $25,000 in cash during a warrant-authorized search of a residence for drugs. The superior court issued an order transferring the money to the federal government, and the federal government has instituted proceedings to declare the money forfeited as drug sale proceeds. (21 U.S.C. § 881(a)(6).) Appellant Paul L. Fields, Jr., claims ownership of the disputed property, and challenges the superior court's turnover order. We affirm the order.

FACTS

On March 5, 2000, Arcata police officers searched a residence for marijuana pursuant to a search warrant issued by a Humboldt County Superior Court judge. The officers seized a duffel bag containing $25,000 in $100 bills during the course of the search. Appellant Paul L. Fields, Jr. who was visiting the residence at the time of the search and seizure, claimed ownership of the money. No criminal charges relating to this incident were ever filed against Fields.

On March 6, 2000, the Humboldt County District Attorney's office issued a receipt for the seized currency with notification that "procedures to forfeit this property are underway" under California statutory provisions authorizing forfeiture of proceeds traceable to drug sales. (Health & Saf.Code, § 11469 et seq.) The notification stated that anyone with an interest in the currency must file a claim within 30 days. (Health & Saf.Code, § 11488.5, subd. (a).)

Fields filed a claim for the currency in the Humboldt County Superior Court on March 23, 2000. On March 27, 2000, the Humboldt County Drug Task Force referred the currency to the federal Drug Enforcement Agency (DEA) for commencement of federal forfeiture proceedings, in lieu of state proceedings. (21 U.S.C. § 881(a)(6).) No state petition of forfeiture was ever filed.¹

On April 5, 2000, the Humboldt County District Attorney's office wrote to the DEA, saying that the county would transfer the currency to the federal authorities without a court order, and advising the DEA that "[n]o turn-over order is required." Physical possession of the currency was apparently given to the DEA, where it rests today, although the record is not clear on this point. It is clear, however, that the Humboldt County Superior Court did not consent to the transfer in April 2000.

Fields was unaware of the federal government's adoption of the seized currency. On March 25, 2001, Fields's attorney contacted the Humboldt County District Attorney's office to request return of the currency on grounds that the one-year statute of limitations for initiating a state forfeiture action had expired. (Health & Saf.Code, § 11488.4, subd. (a).) Fields was informed of the DEA's adoption of the currency for federal forfeiture.

Meanwhile, the federal government had filed a forfeiture complaint and the currency was declared forfeited in December 2000 under administrative forfeiture provisions when the complaint went unanswered. That declaration of forfeiture was vacated by a federal district court on May 5, 2003, upon Fields's demonstration that the government failed to provide him with adequate notice of the federal proceedings. The federal five-year statute of limitations on forfeitures had not yet run, and the federal government filed another complaint on May 20, 2003. (19 U.S.C. § 1621; 21 U.S.C. § 881(d).) This second complaint was dismissed on September 16, 2003. The federal district court held that Humboldt County Superior Court acquired in rem jurisdiction of the currency, by virtue of the search warrant it issued and Fields's pending claim for the property, and continued to have exclusive jurisdiction unless and until a turnover order was issued by the state superior court.

On November 4, 2003, the Humboldt County District Attorney's office filed in superior court a "Request for Release of Seized Property (Penal Code Section 1536)" and submitted a supporting affidavit and proposed order. The prosecutor served Fields's attorneys with the documents by mail. On November 6, 2003 without waiting for any opposition by Fields, the superior court issued an "Order to Release Property[,] [¶] Nunc Pro Tunc." The court ordered the seized currency previously released to the DEA to be formally released to the DEA for federal forfeiture proceedings, expressly relinquishing "any and all jurisdiction it has to the $25,000 in U.S. Currency."

On December 19, 2003, Fields moved to set aside the release order and to return the currency to him. Fields claimed that he was denied proper notice of the People's request for release to the DEA, and that the running of the state statute of limitations on forfeitures precluded the court from issuing any order except an order of dismissal. The People opposed Fields's motion to vacate the release order and, following a hearing, the court denied the motion on January 26, 2004. The court reaffirmed its November 2003 "turnover order," stating that "the mere inadvertence of the prosecution" in failing to obtain the order earlier "should not result in the inability of the federal court to hear the matter on the merits." The federal government then filed a new forfeiture complaint in federal district court on January 30, 2004.² That federal action has been stayed pending resolution of this appeal by Fields, in which he challenges the superior court's January 2004 order.

DISCUSSION

A. Appealability

There are several preliminary matters requiring resolution before turning to the merits of Fields's appeal. First, the Humboldt County District Attorney argues that the challenged order is not appealable. The California Attorney General, as amicus curiae, joins in that argument. The argument has merit. The right of appeal is purely statutory. (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 125, 37 Cal.Rptr. 176.) "Only such actions of the trial court may be reviewed on appeal as the Legislature has selected." (Ibid.) The challenged order is not listed among those that the Legislature has selected for appeal, and Fields has not identified any other statutory authority for his appeal. (Code Civ. Proc., § 904.1; see Health & Saf.Code, § 11488.5, subd. (c)(3) [Code of Civil Procedure provisions apply to forfeiture actions].) Nor has Fields presented any reason why the rule of nonappealability applicable to orders denying the release of property under Penal Code provisions (People v. Gershenhorn at pp. 125-126, 37 Cal.Rptr. 176) is not equally applicable to his claim for the return of property seized for civil forfeiture.

It appears that the proper avenue of redress was through a petition for a writ of mandate, not an appeal. (See People v. Gershenhorn, supra, 225 Cal.App.2d at p. 126, 37 Cal.Rptr. 176 [discretionary review by writ of mandate available for order denying release of property].) However, dismissal of the appeal at this juncture, after all proceedings in the superior court have ceased and the issues have been fully briefed in this court, would only delay resolution of the proper disposition of the disputed currency. The matter has already occupied years of litigation in federal and state courts. The unusual circumstances presented by this case warrant treating the purported appeal as a petition for writ of mandate, and thus reaching the merits. (Olson v. Cory (1983) 35 Cal.3d 390, 401, 197 Cal.Rptr. 843, 673 P.2d 720.)

B. Jurisdiction

The Attorney General, however, raises another claimed impediment to our reaching the merits. The Attorney General claims that we lack jurisdiction to hear Fields's appeal because possession of the res ($25,000) is the source of in rem jurisdiction, and therefore jurisdiction was lost when the superior court transferred the res to the DEA. The Attorney General is effectively arguing that trial court orders adjudicating disposition of the res are immunized from review upon execution of the order. In rem jurisprudence does not dictate such a result.

"`Forfeiture is a civil in rem action in which the property is proceeded against as a defendant on the legal fiction that the property itself is the guilty party.'" (People v. 6344 Skyway, Paradise, California (1999) 71 Cal.App.4th 1026, 1032, 84 Cal.Rptr.2d 198.) As the Attorney General rightly notes, it is a bedrock principle that an in rem action requires that the court have actual or constructive possession of the subject of the suit (the res) in order to proceed with the cause. (Penn Co. v. Pennsylvania (1935) 294 U.S. 189, 195-196, 55 S.Ct. 386, 79 L.Ed. 850.) The Attorney General concedes that the superior court acquired jurisdiction of the $25,000 in currency (the res) upon seizure of the currency pursuant to a warrant issued by that court: "When property is seized pursuant to a warrant, although it might be physically held by law enforcement officials, it is in the de jure custody, control and jurisdiction of the issuing magistrate. . . ."³ However, the Attorney General argues that the superior court lost jurisdiction when it released the currency pursuant to its November 2003 turnover order.⁴

If the superior court's turnover order went unchallenged and became a final order, there would be force to the Attorney General's argument that state court jurisdiction has terminated. However, Fields filed a motion to vacate the turnover order and then appealed the court's denial of that motion. We believe that the state courts, specifically this court, retain constructive in rem...