People v. Superior Court (Clements)

• Decision Date: 18 April 1988
• Docket Number: No. A039899,A039899
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, City and County of San Francisco, Respondent, Patricia CLEMENTS, et al., Real Parties in Interest.

Page 122

246 Cal.Rptr. 122

200 Cal.App.3d 491

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California, City and County of San Francisco, Respondent Patricia CLEMENTS, et al., Real Parties in Interest.

No. A039899.

Court of Appeal, First District, Division 4, California.

April 18, 1988.

Review Denied July 28, 1988.

Arlo Smith, Dist. Atty., Hugh A. Donohoe, Ass't. Dist. Atty., City and County of San Francisco, San Francisco, John K. Van de Kamp, Atty. Gen., Gary W. Schons, Deputy Atty. Gen., San Diego, for petitioner.

Martin D. Lurie, V. Roy Lefcourt, Michael J. Gaines, Ellen Chaitan, Maureen R. Kallins, Lt. Edmund Pecinovsky, Officer in Charge, Legal Div., San Francisco Police Dept., San Francisco, for real parties in interest.

ANDERSON, Presiding Justice.

In this petition for writ of mandate, the People challenge respondent court's release of assets subject to forfeiture pursuant to Health and Safety Code section 11470 et seq. to enable defendants to secure private counsel. ¹ We consider the People's challenge despite a contention that it is untimely. We conclude that the California statutory scheme authorizes forfeiture of even that property necessary for the retention of private counsel, and we hold that such retention is not prohibited by the constitutional right to counsel.

Section 11470 as amended in 1986 (Stats. 1986, ch. 1044, § 25.5, pp. 768-770) provides that "all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished" in illegal drug transactions are subject to forfeiture "if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property." (Subd. (f).) The section further provides that "all right, title, and interest in any personal property described in this section shall vest in the state upon commission of the act giving rise to forfeiture under this chapter." (Subd. (h).) Property subject to seizure may be seized, as in the cases now before this court, incidentally to an arrest for a designated narcotics offense or pursuant to the execution of a search warrant. (§ 11471.) Section 11488.4 as amended in 1986 (Stats. 1986, ch. 1032, § 8, pp. 706-708) provides that, if there is an underlying or related criminal action, a defendant may move for return of the property on the grounds that there is not probable cause to believe that the property is forfeitable. (Subd. (h).) The ultimate right to forfeiture will ordinarily await the completion of the criminal trial. (§§ 11488.4, subd. (i); 11488.5, subd. (e).)

In four cases in San Francisco Municipal Court defendants charged with narcotics offenses filed nonstatutory ² motions in municipal court prior to their preliminary hearings for return of moneys which had been seized and held by the police department pending forfeiture proceedings. The motions were made solely on the ground that refusal to release moneys needed to retain private counsel in the underlying criminal proceedings is unconstitutional. In each of the cases, the municipal court granted the motion and the People filed a petition for mandate in respondent superior court. The four writ proceedings were consolidated and the petitions were denied in orders filed July 7 and July 9, 1987. The People filed the instant petition challenging these orders on September 21, 1987, and named as real parties in interest the defendants and their attorneys.

Respondent court found that the constitutional right of defendants to retain counsel of their choice with funds necessary for bona fide legal services is an exception to the forfeiture provisions of the Health and Safety Code. In each case, the court found that there was substantial evidence that the defendant required the funds at issue to retain counsel and that the amount of funds released in the municipal court's order was reasonable for attorney's fees. The People in this petition do not challenge the finding that the funds were necessary or the reasonableness of the amount released but only the jurisdiction of the court to order the funds released.

Timeliness

There is no statutory period which governs the timeliness of the petitions to the superior court or to this court. The 15-day period in which the People may seek review after the granting of a statutory motion for return of the property pursuant to section 11488.4 subdivision (h) applies only to review of motions made on the ground that there is not probable cause to believe the property is forfeitable. ³ The motion for return in municipal court not only did not purport to be made pursuant to this section, it did not raise the grounds on which the statutory motion may be made. The 15-day limit thus cannot be applied. (See Lockwood v. Superior Court (1984) 160 Cal.App.3d 667, 671, 206 Cal.Rptr. 785; Ondarza v. Superior Court (1980) 106 Cal.App.3d 195, 200, 164 Cal.Rptr. 892.)

Real parties, citing People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749, 752, 160 Cal.Rptr. 455, contend that the petition is untimely because filed beyond the 60-day period in which an appeal must be filed. The People correctly point out that in Mercer review by petition was sought as an alternative to direct appeal, thus giving the courts a paralleltime limit to consult. Even when there has not been an alternative right to appeal, however, courts of appeal have been reluctant to entertain writs filed beyond the 60-day period in which a party may appeal. (See Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499-500, 165 Cal.Rptr. 748; Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 937-938, 152 Cal.Rptr. 870.) Where as here there is no statutory time in which a petition must be filed, the approach of the Supreme Court to the timeliness of a petition has been one of laches. "Laches requires an unreasonable delay in filing the petition plus prejudice to real party." (Peterson v. Superior Court (1982) 31 Cal.3d 147, 163, 181 Cal.Rptr. 784, 642 P.2d 1305; see also People v. Superior Court (Kizer) (1984) 155 Cal.App.3d 932, 934, 204 Cal.Rptr. 179.)

Here the petition to this court was filed approximately two-and-one-half months after the challenged orders. ⁴ Petitioner contends that the delay was not unreasonable considering that the transcript was not immediately available and the issue is one in which a substantial brief was required. We note, however, that there was substantial briefing of the same issue below and no use has been made of the transcript. Real parties also contend that they have been prejudiced by the delay--on the attorneys' part because they continued their work believing there was to be no petition and on the clients' part because they have been forced to choose between speedy trial rights and the right to be represented by counsel of their choice. As to the defendants, they initiated the issue by their motions for release of funds. They must be held to have waived their speedy trial rights until the appropriate appellate challenges have been exhausted. As to their attorneys, reliance on the fact that no petition had been filed would not be justified, at least during the 60 days in which they now argue the People were required to act. As to the approximately 15-day period after this time, the attorneys are not specific as to the additional work and, thus, the prejudice they suffered.

While we do not wish to suggest approval of delay in a process which can and should be pursued more expeditiously than was done here, this is a case of first impression and one which may escape review if not addressed in a petition for mandate. There is no direct appeal from the superior court's order and the People may not appeal from the final judgment of conviction. The issue is one of importance to both the bar and the public. Under these circumstances, we exercise our discretion in favor of resolving the issue on its merits.

Scope of the Statute

Prior to 1986, forfeiture of property involved in drug trafficking awaited the conviction of the persons charged with the criminal offense and thus the question of whether funds seized before trial could be released for payment of attorney fees was not an issue. In 1986, the forfeiture statutes were amended to bring them more closely in line with federal forfeiture statutes. ⁵ These federal statutes had themselves been revised by the Comprehensive Forfeiture Act of 1984 (CFA) so as to provide for seizure prior to trial (see 21 U.S.C. § 853(e), (f)) and the vesting of title in the government "upon the commission of the act giving rise to forfeiture" (see 21 U.S.C. § 853(c)). The purpose of these changes, enacted in the CFA, was to close a loophole in the previous criminal forfeiture scheme that had allowed defendants to evade forfeiture by means of third-party transfers prior to conviction. (See United States v. Monsanto (2d Cir.1987) 836 F.2d 74, 78, citing S.Rep. No. 225, 98th Cong., 1st Sess. 196, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3379.)

Several federal district courts have held that Congress did not intend the provisions to apply to property used to pay legitimate attorney's fees. (See e.g., United States v. Estevez (E.D.Wis.1986) 645 F.Supp. 869; United States v. Ianniello (S.D.N.Y.1985) 644 F.Supp. 452; United States v. Badalamenti (S.D.N.Y.1985) 614 F.Supp. 194; United States v. Rogers (D.Colo.1985) 602 F.Supp. 1332). These lower federal courts concluded that forfeiture was intended to reach only fraudulent third-party transfers and not legitimate attorney's fees. However, the Court of Appeals for the Fourth Circuit rejected this interpretation of the federal statutory scheme and has held that Congress did not intend to exempt non-fraudulent attorney's fees. (United States v. Caplin & Drysdale (4th Cir.1988) 837 F.2d 637.)

The court in Caplin & Drysdale pointed out that the language of the forfeiture statute makes no...