People v. Superior Court

• Decision Date: 09 November 1972
• Docket Number: Cr. 5616
• Citation: 104 Cal.Rptr. 876,28 Cal.App.3d 600
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT, ORANGE COUNTY, Respondent, Frederick Arnold Loar et al., Real Parties In Interest. PEOPLE of the State of California, Plaintiff and Appellant, v. Frederick Arnold LOAR and Kay Nancy Loar, Defendants and Respondents. Civ. 12087,

Page 876

104 Cal.Rptr. 876

28 Cal.App.3d 600

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT, ORANGE COUNTY, Respondent, Frederick Arnold Loar et al., Real Parties In Interest.

PEOPLE of the State of California, Plaintiff and Appellant, v. Frederick Arnold LOAR and Kay Nancy Loar, Defendants and Respondents.

Civ. 12087, Cr. 5616.

Court of Appeal, Fourth District, Division 2, California.

Nov. 9, 1972.

As Modified on Denial of Rehearing Nov. 27, 1972.

Hearing Denied Jan. 3, 1973.

[28 Cal.App.3d 603] Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for petitioner, plaintiff and appellant.

F. Filmore Jaffe and Saul J. Bernard, Los Angeles, for real parties in interest, defendants and respondents.

[28 Cal.App.3d 604] No appearance for respondent Superior Court.

OPINION

TAMURA, Associate Justice.

Police officers of the City of Westminster seized vast quantities of motion picture films, still photos and records from real parties in interest (hereafter defendants) pursuant to two search warrants. In due course an information was filed charging defendants with conspiracy to prepare, publish, distribute and exhibit obscene matter in violation of Penal Code section 311.2, and with a misdemeanor court of possession of obscene material in violation of the section. A jury trial resulted in a 'not guilty' verdict on both counts. Defendants thereupon moved for return of all seized materials, most of which remained in possession of the Westminster Police Department. The court granted the motion and ordered the district attorney and the Chief of Police of the City of Westminster to return all material seized under the two search warrants. Following entry of the order, the People forthwith filed a notice of appeal. Contempt proceedings were thereafter instituted against the district attorney, one of his deputies, and the chief of police for refusal to comply with the order.

Three matters stemming from the order to return are now before us: (1) A petition for a writ of prohibition to restrain the court below from threatened enforcement of the order through contempt proceedings; (2) petition for a writ of review to annul an order adjudging the chief of police in contempt for failure to return the seized materials; ¹ and (3) defendants' motion to dismiss the People's pending appeal from the order to return.

The following events led to these proceedings:

Westminster police officers obtained a search warrant from a municipal court judge for the seizure of 10 identified films from defendants. In the execution of the warrant, the officers observed huge quantities of other films, still pictures and records. They thereupon obtained a second search warrant and seized some 20,000 films, thousands of still pictures, and records. Defendants made motions in the municipal court to quash the two search warrants. The motion to quash was denied as to the first warrant but a separate motion as to the second was granted insofar as the seizure of films was concerned. Following a preliminary hearing at which the films seized under the first warrant were introduced into evidence, the magistrate determined that there was probable cause to believe the films to be obscene and bound defendants over to the superior court.

Upon the filing of the information, de novo hearings were held on the validity of the seizures. The superior court ruled that seizures under both warrants were valid. Defendants unsuccessfully sought successive writs from this court to review and set aside orders denying their motion to suppress and granting the People's motion under Penal Code section 1538.5, subdivision (j).

At the trial, in addition to the films seized under the first search warrant, the prosecution introduced into evidence 12 of the films seized under the second search warrant. ² Immediately following the not guilty verdicts, defendants orally moved in open court for the return of all seized materials. The court forthwith ordered return of the films introduced into evidence but, with respect to the remainder, directed defendants to file an inventory of the items claimed to be in possession of the district attorney and chief of police together with a memorandum of authorities in support of the motion. The People were granted leave to file a responding memorandum. Following filing of the inventory and memoranda, the matter was submitted and the court made its order directing the district attorney and chief of police and their subordinates to return forthwith to defendants all material seized under the two search warrants. Upon entry of the order, the People filed a notice of appeal.

Defendants thereafter instituted contempt proceedings against the district attorney, one of his deputies and the chief of police for willful failure to comply with the return order. Following hearing on the order to show cause, the court dismissed the contempt proceedings against the district attorney and his deputy; the dismissal as to the district attorney was for lack of proof of service of the order to show cause and the dismissal as to the deputy was for lack of any evidence of contempt. The chief of police, however, was adjudged guilty of contempt but imposition of sentence was suspended for 60 days.

Upon the filing of the People's petition herein for prohibition and review, we issued an alternative writ and stay order. Meanwhile, defendants moved to dismiss the People's appeal from the return order on the ground it was nonappealable. We ordered the order to show cause and the motion to dismiss the appeal consolidated for hearing and disposition by a single opinion.

Insofar as it seeks a writ of prohibition, the People's petition goes directly to the heart of the present controversy, namely, the validity of the return order. We therefore address ourselves to the matters before us in the following order: First to petitioner's entitlement to a writ of prohibition; then to the petition for writ of review; and finally to defendants' motion to dismiss the People's appeal from the return order.

I PETITION FOR WRIT OF PROHIBITION

The People seek to enjoin the threatened imposition of sentence for contempt as against the chief of police and the institution of further contempt proceedings against the district attorney and his deputy on the ground the court had no jurisdiction to make the order on which the contempt proceedings were based. As to the chief of police, it is further urged that the court lacked jurisdiction to adjudge him guilty of contempt because the appeal from the order to return operated as a stay.

Prohibition is an appropriate remedy to stay contempt proceedings where it is manifest from previous acts of the court that it will proceed notwithstanding the fact that it lacked jurisdiction to make the order on which the contempt proceeding is based (Commercial Bk. Etc. v. Superior Court, 192 Cal. 395, 397, 220 P. 422; Andrews v. Superior Court, 103 Cal.App. 360, 366, 284 P. 494; Pennell v. Superior Court, 87 Cal.App. 375, 378, 262 P. 48) or that the purported order was nonexistent or inoperative. (Miller v. Superior Court, 9 Cal.2d 733, 736, 72 P.2d 868; Ketscher v. Superior Court, 9 Cal.App.3d 601, 604, 88 Cal.Rptr. 357.) The petition for writ of prohibition thus properly raises both the validity of the return order and the question whether the People's appeal therefrom operated as a stay.

A. Validity of the order to return.

Although the People do not question the order insofar as it pertained to the release of the films actually introduced into evidence (Pen.Code, §§ 1417--1418.5), they challenge the power of the court to order return of the seized materials which were not introduced into evidence and which remain in possession of the chief of police on two grounds: (1) The court lacked jurisdiction to entertain a summary proceeding in the criminal action for return of the seized materials and (2) defendants were not entitled to have the seized materials returned absent a prior judicial determination that they were not obscene. For the reasons which follow, we reject both grounds.

1. Jurisdiction to entertain motion for return.

The People urge that with respect to the seized materials which were not introduced into evidence, the only remedy available for their return was a proceeding in mandate or a civil action for their recovery. While independent civil remedies were available (see People v. Luros, 4 Cal.3d 84, 88, 92 Cal.Rptr. 833, 480 P.2d 633; Aday v. Superior Court, 55 Cal.2d 789, 799, 13 Cal.Rptr. 415, 362 P.2d 47; Franklin v. Municipal Court, 26 Cal.App.3d 884, 897, 103 Cal.Rptr. 354; Williams v. Justice Court, 230 Cal.App.2d 87, 94, 40 Cal.Rptr. 724; People v. Gershenhorn, 225 Cal.App.2d 122, 126, 37 Cal.Rptr. 176; Aday v. Municipal Court, 210 Cal.App.2d 229, 249, 26 Cal.Rptr. 576 (mandate); see People v. Gershenhorn, Supra; Modern Loan Co. v. Police Court, 12 Cal.App. 582, 587 (claim and delivery)), we cannot agree that they were exclusive.

The court derived its power to entertain the motion for return of the seized items from Penal Code section 1536 as well as from its inherent power 'to control and prevent the abuse of its process.' (See Buker v. Superior Court, 25 Cal.App.3d 1085, 1089, 102 Cal.Rptr. 494, 496.) Section 1536 provides that property seized under a search warrant 'must bo retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable.' ³

The People contend that section 1536 could not have been the source of the superior court's power to make the questioned order after the trial of the criminal action was concluded because (1) the offense in respect to which the property was taken was then no longer 'triable' in the superior court within the meaning of the section and (2)...