People v. Superior Court (Chico etc. Health Center)

• Decision Date: 01 December 1986
• Citation: 232 Cal.Rptr. 165,187 Cal.App.3d 648
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Butte County, Respondent; CHICO FEMINIST WOMEN'S HEALTH CENTER et al., Real Parties in Interest. Civ. 26276.

Page 165

232 Cal.Rptr. 165

187 Cal.App.3d 648

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Butte County, Respondent CHICO FEMINIST WOMEN'S HEALTH CENTER et al., Real Parties in Interest.

Civ. 26276.

Court of Appeal, Third District, California.

Dec. 1, 1986.

John K. Van de Kamp, Atty. Gen., W. Scott Thorpe and David A. Rhodes, Deputy Attys. Gen., for petitioner.

No appearance for respondent.

Mark E. Merin, Kanter, Williams, Merin & Dickstein, Sacramento, and Paul T. Persons, Chico, for real parties in interest.

PUGLIA, Presiding Justice.

The People petition for writ of mandate seeking review of an order of respondent superior court. The order upholds a magistrate's ruling that certain business records and documents seized pursuant to a search warrant from real party in interest Chico Feminist Women's Health Center (Center) must be returned to Center. We have stayed the magistrate's order directing return of the records and documents. We now conclude that the writ should issue, although not for the reasons urged by the People.

In 1983 the State Employment Development Department (EDD) commenced an investigation of alleged violations of the Unemployment Insurance Code by real parties in interest, Center and certain of its employees (collectively referred to as "Center"). A justice court judge, sitting as a magistrate, issued a search warrant authorizing seizure of certain records and documents in the possession of Center. The warrant was executed in February 1984 by officers of the Sheriff's department and EDD. Numerous records and documents were seized and turned over to the district attorney, but no action was taken to initiate a prosecution.

In July 1984, Center filed a motion seeking return of the property. A lengthy round of motions and hearings followed, which we need not detail here. After the records and documents had been in the possession of the district attorney for 13 months, the magistrate, in March 1985, ordered them returned to the custody of the court. More procedural manuevering ensued, and in November 1985, the magistrate held the search and seizure illegal and directed the return of all records and documents to Center. In doing so, the magistrate ruled on only one of numerous Fourth Amendment and statutory issues raised by Center's motion to return.

The People filed notice of appeal in respondent superior court. After concluding that the magistrate's order was not reviewable by appeal, the People petitioned the superior court for a writ of mandate. The superior court stayed return of the records and documents to Center pending decision on the petition, and they remain in the custody of the magistrate to this day. After the issues were briefed and argued, the superior court denied the petition solely on procedural grounds. The superior court reasoned that the magistrate's order was not appealable; decisional authorities hold that when the Legislature has not vouchsafed to the People a right of appeal, this lacuna cannot be filled by resort to the extraordinary writ process; therefore the petition must be denied.

The superior court's order denying the writ, made March 7, 1986, was stayed, first for 45 days, then until May 22, to give the People an opportunity to seek review here. On May 20, the instant petition was filed, and on May 22 this court issued its own stay, barring return of the documents, pending further order.

The instant petition asserts that the superior court erred in holding the People are not entitled to writ review, and that the superior court should have ruled on the merits of the challenge to the magistrate's order to return the records and documents to Center. In addition the petition asks this court to hold that the magistrate erred in concluding the search was illegal.

Preliminarily, we note that the legality of the search is not ripe for review, since the superior court has not ruled on the issue. The only question before us is whether the superior court erred in declining to consider the merits of the People's petition. While we recognize that we have no authority to order the superior court to exercise its discretion in a particular way, when, as here, that court has erroneously refused to exercise its discretion at all, we may direct it to do so. (Burnett v. Superior Court (1974) 12 Cal.3d 865, 869-870, 117 Cal.Rptr. 556, 528 P.2d 372.) For the reasons that follow, we conclude that the superior court erred in denying the People writ review of the magistrate's order. Accordingly, we shall issue a writ of mandate directing the superior court to reinstate the People's petition and rule on the merits of the controversy.

The superior court and the parties have treated the proceedings before the magistrate as a motion for the return of property pursuant to Penal Code section 1540. This is an accurate characterization of the proceeding. Section 1540 provides: "If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken."

A number of cases, in various contexts, have established that section 1540 is intended to give the owner of seized property an avenue for challenging the legality of a seizure pursuant to warrant. (See, e.g., People v. Butler (1966) 64 Cal.2d 842, 844-845, 52 Cal.Rptr. 4, 415 P.2d 819; Aday v. Superior Court (1961) 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47; People v. Chochos (1973) 31 Cal.App.3d 445, 107 Cal.Rptr. 410; People v. Gershenhorn (1964) 225 Cal.App.2d 122, 125, 37 Cal.Rptr. 176; People v. Perez (1961) 189 Cal.App.2d 526, 531, 11 Cal.Rptr. 456; People v. Bonanza Printing Co. (1969) 271 Cal.App.2d Supp. 871, 874, 76 Cal.Rptr. 379.) While section 1540 is not to be relied upon in cases where relief would be available pursuant to Penal Code section 1538.5, the latter section is not applicable in this case, since by its terms it is restricted to a motion by "a defendant" to return property or suppress "as evidence" tangible or intangible things obtained in a search or seizure. In search warrant cases not covered by section 1538.5, the proper procedure is to address a motion to return or suppress to the magistrate who issued the warrant. (See People v. Chochos, supra, 31 Cal.App.3d at pp. 458-459, 107 Cal.Rptr. 410.) The second clause of section 1540 ("that there is no probable cause for believing the existence of the ground on which the warrant was issued") provides the authority for Center's attack on the search warrant which eventually resulted in the magistrate's order. ¹

Is the Magistrate's Order Directing Return of the Documents Appealable?

In the superior court and here, Center has maintained, without citation to authority, that the People's petition to the superior court should have been rejected because the magistrate's order was final, determined all the issues between the parties, and was therefore appealable. The superior court, relying primarily on People v. Gershenhorn, supra, 225 Cal.App.2d at pages 125-126, 37 Cal.Rptr. 176, and Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 363-364, 38 Cal.Rptr. 576, rejected this contention. The Gershenhorn decisions and other cases involving motions to return or suppress property brought before, during and after trial, have consistently held that there is no right to appeal from orders granting or denying such motions. (See, e.g., Flack v. Municipal Court (1967) 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192; Aday v. Superior Court, supra, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47; Jett v. Municipal Court (1986) 177 Cal.App.3d 664, 667, 223 Cal.Rptr. 111; Espinosa v. Superior Court (1975) 50 Cal.App.3d 347, 350, 123 Cal.Rptr. 448; People v. Hopkins (1975) 44 Cal.App.3d 326, 328, 118 Cal.Rptr. 683; People v. Superior Court (1972) 28 Cal.App.3d 600, 623, 104 Cal.Rptr. 876.) These cases all involve motions made in the trial court as distinguished from a section 1540 motion to a magistrate, but they all rely on the same reasoning: that the right to appeal is strictly statutory, and the Legislature, by omitting orders granting or denying motions to return property from those dispositions which are expressly appealable (see Pen.Code, §§ 1466, 1237, 1238), has implicitly precluded review. This analysis is most prominently explicated in People v. Gershenhorn, supra, 225 Cal.App.2d at pages 125-126, 37 Cal.Rptr. 176, and a number of the later cases simply cite Gershenhorn for the proposition.

Apart from the Gershenhorn principle, there is a more cogent reason why the magistrate's order is not appealable to the superior court. The superior court's appellate jurisdiction is conferred by statute and extends only to orders or judgments of an inferior court, i.e., a justice or municipal court. Orders of a judge issued while sitting as a magistrate are not orders of an inferior court. (See People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651; People v. Hawkins (1978) 85 Cal.App.3d 960, 968, 149 Cal.Rptr. 855; People v. Belknap (1974) 41 Cal.App.3d 1019, 116 Cal.Rptr. 664; People v. Randall (1973) 35 Cal.App.3d 972, 111 Cal.Rptr. 590; Wells v. Justice Court (1960) 181 Cal.App.2d 221, 5 Cal.Rptr. 204; People v. Denton (1978) 84 Cal.App.3d Supp. 1, 148 Cal.Rptr. 850.) As the cited cases explain, a magistrate is a purely statutory officer whose powers and functions all judges of courts of record are authorized to exercise and perform. However, " 'When a judge of a particular judicial district acts in the capacity of a magistrate, he does not do so as a judge of a particular court but rather as one who derives his powers from the provisions of Penal Code, sections 807 and 808...." (People v. Hawkins, supra, 85 Cal.App.3d at p. 966, 149 Cal.Rptr. 855.) Penal Code section 1466, which establishes the appellate jurisdiction of the superior court,...