People v. Superior Court (Brent)

• Decision Date: 09 January 1992
• Docket Number: No. F016015,F016015
• Citation: 2 Cal.App.4th 675,3 Cal.Rptr.2d 375
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT of Kern County, Respondent; Joel Anthony BRENT, Real Party in Interest.

Page 375

3 Cal.Rptr.2d 375

2 Cal.App.4th 675

The PEOPLE, Petitioner, v. SUPERIOR COURT of Kern County, Respondent Joel Anthony BRENT, Real Party in Interest.

No. F016015.

Court of Appeal, Fifth District, California.

Jan. 9, 1992.

As Modified on Denial of Rehearing Feb. 6, 1992.

Review Denied March 25, 1992.

[2 Cal.App.4th 678] Daniel E. Lungren, Atty. Gen., Gary W. Schons, Deputy Atty. Gen., Edward R. Jagels, Dist. Atty. of Kern County, San Diego, Michael Yraceburn, Deputy Dist. Atty., Bakersfield, for petitioner.

Gregory H. Mitts, Bakersfield, for real party in interest.

OPINION

HARRIS, Associate Justice.

INTRODUCTION

The People have filed a writ petition after the superior court granted the defendant's motion to dismiss forfeiture proceedings and to return $3,455 in United States currency. On June 27, 1991, we granted an order to show cause.

FACTS AND PROCEEDINGS BELOW

Joel Brent was arrested in Bakersfield with illegal narcotics in his possession and $3,455 in cash. Criminal proceedings followed. On August 17, 1990, his defense counsel successfully moved to have both the illegal narcotics and the cash suppressed pursuant to Penal Code section 1538.5. The People filed an appeal in the criminal action. On January 2, 1991, the People voluntarily dismissed their appeal from the trial court's granting of the defendant's suppression motion.

The People initiated the instant proceedings with a petition for forfeiture filed on June 5, 1990. The petition sought forfeiture to the State of California of the $3,455 in United States currency. Though the defendant Brent was represented by counsel in the criminal action, he responded to the People's forfeiture action in propria persona. On October 9, 1990 (after the suppression motion had been granted in the criminal action), the People, pursuant to Code of Civil Procedure section 2033, propounded a request for admissions on Brent in propria persona. Brent was told that he was requested to admit the truthfulness of each of the facts set forth.

Request No. 1 stated that Brent was involved in the sales of a controlled substance at the time his property was seized. Request No. 2 stated that the property subject to the forfeiture was furnished or intended to be furnished in exchange for a controlled substance. Request No. 3 stated that the property was obtained in exchange for a controlled substance. Request No. 4 stated that the defendant property [$3,455 in United States currency] was used or intended to be used to facilitate the possession for sale, sales, manufacturing, transportation or the conspiracy to sell, transport or manufacture a controlled substance. Brent did not answer or otherwise respond to the request.

On December 21, 1990, the People filed and served a notice of motion for order that the request for admissions be deemed admitted and for sanctions. The hearing was set for January 15, 1991.

Brent made no appearance at the hearing. The People's motion to have the requested admissions deemed admitted was granted. Brent was sanctioned for failing to comply with the People's request for discovery.

Brent then secured the services of the attorney who represented him in the criminal action. Counsel noticed a motion for return of property and dismissal of the forfeiture proceedings. The People filed opposition to Brent's motion.

The hearing was conducted on April 17, 1991. At the hearing the argument centered on a single question: whether or not the admissions could serve as an independent basis of proof in the People's forfeiture action apart from the evidence that had been suppressed. The People argued that the admissions served as an independent basis of proof. Brent argued that the request for admissions were served after the evidence had been suppressed and the People's discovery emanated from a tainted transaction. Though Brent did not articulate that the discovery was fruit of the poisonous tree, this was the gist of his argument to the trial court.

The trial judge hearing the motion was Judge Randall, the same judge who had granted the People's motion to deem the request for admissions as admitted. Judge Randall expressed concern that the cases which found independent evidence as sufficient to sustain a forfeiture proceeding did so on the basis of outside evidence separate and unrelated to the evidence that was suppressed. In those cases, the People had, for example, secured the testimony of an informant or had seized other contraband in addition to that which was suppressed. (United States v. Property at 4492 S. Livonia Rd., Livonia (2d Cir.1989) 889 F.2d 1258, 1260-1261, 1265-1266; United States v. One 1985 Cadillac Seville (9th Cir.1989) 866 F.2d 1142, 1146-1147.) Judge Randall agreed with Brent's characterization of the request for admissions as being derived directly from an illegal search and seizure. There was no way to break the continuum between the tainted evidence and the request for admissions themselves. On that basis Judge Randall granted Brent's motion to dismiss the forfeiture proceedings and to return the $3,455 in United States currency.

Thereupon, in the context of discussion as to whether they would appeal, the People requested a 20-day stay order. The People were concerned that "if the property is returned, Courts lose all jurisdiction." The trial court granted a 20-day stay order and informed counsel that he would "have to wait for your fee at least that long." The district attorney then inquired of the trial court as to whether he would be allowed to deduct the amount of the previous sanctions from the currency if they decided not to appeal. The trial court told the deputy district attorney that his office could deduct the sanctions from the amount. The minute order from this hearing stated that the motion was granted and stayed 20 days.

The People contend that the trial court "erred in concluding that the admissions were not 'independent' of the initial, illegal seizure." The People argue the admissions were "the result of an intervening independent act of the claimant, 'attenuating' the 'taint' of the initial illegality." We do not reach the merits of the People's contention or petition as we determine the petition was not timely filed. The defect is jurisdictional and for this reason we will dismiss the petition.

DISCUSSION

The People's petition for forfeiture was filed pursuant to Health and Safety Code section 11470 et seq. Section 11488.4 of the Health and Safety Code provides the procedural scheme for initiation and adjudication of forfeiture proceedings. We note the applicable version of the statute is in effect until a different one takes effect on January 1, 1994. Subdivision (g)(1) of section 11488.4 provides in pertinent part for the procedure for a claimant to move the court "for the return of the property." Subdivision (g)(1) further provides that upon appropriate showing the court "shall order the property returned to the owner."

Subdivision (g) creates two procedural options for challenging the forfeiture of property. Under subdivision (g)(1), a "claimant" alleging standing based on an interest in property may seek return of the property. Under subdivision (g)(2), a defendant may bring a motion to return property in conjunction with a Penal Code section 1538.5 motion. No language in subdivision (g)(1) restricts that motion procedure to third party claimants. We find that under the current version of section 11488.4, a criminal defendant may file a motion for return of property under either subdivision (g)(1) or subdivision (g)(2). Contrary to the People's contention during oral argument, we further find that the instant motion was not a common law motion but was a motion brought pursuant to subdivision (g) in accordance with the forfeiture statutes. ¹

It is next provided that "[w]ithin 30 days after a motion for return of property is granted pursuant to subdivision (g), the people may file a petition for writ of mandate or prohibition seeking appellate review of the order." (Health & Saf.Code, § 11488.4, subd. (h), emphasis added.) This time limit applies to both subdivisions (g)(1) and (g)(2) motions.

The issue we must address in the instant case is whether the People's petition was timely filed and, if not, whether this court has jurisdiction in the matter. Brent's motion for return of property and dismissal of pending forfeiture proceedings was heard and granted on April 17, 1991. The People filed their writ petition on June 5, 1991. Thus 49 days elapsed between the order granting the motion and the filing of the writ. Rote calculation reveals that unless on some basis the 30-day period commenced running on a date later than April 17, the People, under section 11488.4, subdivision (h), were 19 days late in filing their petition.

We first address the question of whether the time limit provided by section 11488.4, subdivision (h) is jurisdictional. Legal analysis of forfeiture proceedings is complicated by the fact that they are both quasi-civil and quasi-criminal in nature. This is recognized by the forfeiture statute itself. The provisions of the Code of Civil Procedure shall be applied to forfeiture proceedings except to the extent they are otherwise "inconsistent with the provisions or procedures set forth in this chapter." (Health & Saf.Code, § 11488.4, subd. (i).)

To add perspective to time limitations on appellate court jurisdiction, comparison can be drawn between appeals and different kinds of writ proceedings. Normally, the act of filing an appeal stays proceedings in the trial court upon the judgment or order appealed from. (Code Civ.Proc., § 916, subd. (a).) Though a trial court retains jurisdiction to modify interlocutory judgments, to modify a judgment pursuant to a statute, or to stay execution of judgment, the act of filing an appeal normally divests the trial court of any jurisdiction over the action. The purpose of this rule is to protect the jurisdiction of appellate...