Wenzler v. Municipal Court of Pasadena Judicial Dist.

• Decision Date: 16 June 1965
• Citation: 235 Cal.App.2d 128,45 Cal.Rptr. 54
• Court: California Court of Appeals Court of Appeals
• Parties: Harold Eugene WENZLER, Sr., Plaintiff and Appellant, v. MUNICIPAL COURT OF the PASADENA JUDICIAL DISTRICT et al., Defendants and Respondents. Civ. 27831.

Page 54

45 Cal.Rptr. 54

235 Cal.App.2d 128

Harold Eugene WENZLER, Sr., Plaintiff and Appellant, v. MUNICIPAL COURT OF the PASADENA JUDICIAL DISTRICT et al., Defendants and Respondents.

Civ. 27831.

District Court of Appeal, Second District, division 4, California.

June 16, 1965.

Hearing Denied Aug. 11, 1965.

Stanley Fleishman, Hollywood, and Martha Goldin, North Hollywood, for plaintiff and appellant.

Harold W. Kennedy, County Counsel, and William F. Stewart, Deputy County Counsel, for defendants and respondents.

FILES, Presiding Justice.

This proceeding in mandamus was begun by a petition filed in the superior court. That court made a minute order in these words: 'The petitioner's application for the issuance of an alternative writ of mandate is hereby denied.' Petitioner ¹ deems this to be a final order denying his petition and has therefore appealed therefrom under the authority of Steen v. Board of Civil Service Commrs., 26 Cal.2d 716, 727, 160 P.2d 816.

The petition names as respondents 'Municipal Court of the Pasadena Judicial District; Hon. Joseph A. Sprankle, Jr., Judge of the Municipal Court of Pasadena Judicial District, and the County of Los Angeles, State of California.'

The facts hereinafter stated will be the facts alleged in the petition filed in the superior court. Petitioner was a defendant in a criminal prosecution brought in the Pasadena Municipal Court wherein he was charged with a violation of Ordinance number 3035 of the City of Pasadena. On April 25, 1961, petitioner was convicted and sentenced to sixty days' imprisonment, which sentence was suspended. Petitioner was placed on three years' probation on condition that he pay a fine of $1,000 plus $50 penalty assessment. On September 19, 1961, he paid the fine. On December 12, 1962, he filed a petition for writ of habeas corpus in the superior court. In that habeas corpus proceeding the court held that Ordinance 3035 was unconstitutional, that the criminal complaint filed thereunder had failed to allege the commission of a public offense, and, on January 18, 1963, ordered that the petitioner be 'released and discharged re all proceedings' in the aforesaid criminal case.

On April 25, 1963, petitioner moved the municipal court 'for an order for the return of all evidence introduced' in the criminal case and for a return on the fine and assessment. The evidence referred to includes a roll of motion picture film, a book and a number of magazines. On May 6, 1963, Judge Sprankle made the following order: 'The Court denies the motion to return the evidence and refune the fine imposed.' ²

On May 15, 1963, petitioner, through his attorney, wrote to Mr. Roscoe Hollinger, the auditor-controller of the county, requesting repayment of the fine and assessment. On May 24, 1963, petitioner was notified that the county was denying this request.

The prayer of the petition in the superior court is that a writ of mandate issue 'commanding the respondents to return to petitioner the sum of $1050.00 and commanding the respondents, the Honorable Joseph A. Sprankle, Jr. and the Municipal Court. * * *' to return the aforementioned exhibits.

The demand for relief against Judge Sprankle and the municipal court may be disposed of very simply. The writ of mandamus may be issued 'to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; * * *' (Code Civ.Proc., § 1085.) The petition fails to allege any facts from which it could be determined that either Judge Sprankle or the municipal court was at that time under any duty to hand over to petitioner either the money or the exhibits which he seeks.

With respect to the money, Penal Code section 1463 requires that all finds and forfeitures 'shall, as soon as practicable after the receipt thereof, be deposited with the county treasurer * * *' In the absence of any allegation to the contrary it must be assumed that this provision of law was obeyed. (Code Civ.Proc., § 1963, subd. 33.) Neither Judge Sprankle nor the municipal court had any jurisdiction to withdraw this money from the county treasury. (Draper v. Grant, 91 Cal.App.2d 566, 205 P.2d 399; Paton v. Teeter, 37 Cal.App.2d 477, 99 P.2d 699.)

The law with respect to the disposal of exhibits in criminal cases is set forth in Penal Code section 1418. The municipal court has no duty to make an order releasing exhibits to petitioner unless (1) the exhibits are still in the custody of the court and (2) petitioner is the owner or otherwise entitled to possession of the exhibits. The statute authorizes the sale or destruction of exhibits under certain circumstances after termination of one year after the conviction has become final. The petition contains no allegation that any of the exhibits in question remained in the custody of the court when the motion for release was made more than two years after the date of the conviction. Moreover, although petitioner alleges in his petition for mandamus that he is the owner of the exhibits, he does not allege that his ownership was proved when the motion for release of exhibits was heard before Judge Sprankle on April 25, 1963. For all we know, someone else may have appeared at the April 25, 1963, hearing and supplied evidence upon which the court could have found that petitioner was not the owner or the person entitled to possession of those exhibits. Thus the petition for mandamus falls short of alleging facts essential to establish the existence of a duty to release the exhibits to him.

Petitioner's demand for a writ of mandamus against the county, as such, requires consideration of the nature of the proceeding. The judicial remedy of mandamus is not a civil action, but a special proceeding of a civil nature, which is available for specified purposes and for which the code provides a separate procedure. (Code Civ.Proc., §§ 21, 1084-1097; see Meyer, Peculiarities and Pitfalls of Mandate (1961) 36 Los Angeles Bar Bulletin 223.) The purpose of the writ of mandate is set forth in section 1085 of the Code of Civil Procedure:

'It may be issued by any court, except a municipal or justice court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.'

Typically where mandamus is sought to control the affairs of a public entity, the proceeding is brought against the board of officer whose duty it is to act. Where it appears that the officer named as respondent is not the one whose duty is involved, relief is denied. (Peck v. Board of Supervisors, 90 Cal. 384, 27 P. 301; Valley Motor Lines, Inc. v. Riley, 22 Cal.App.2d 233, 70 P.2d 672; Bandini Estate Co. v. Payne, 10 Cal.App.2d 623, 625, 52 P.2d 959; Brown v. Superior Court, 70 Cal.App. 732, 736, 234 P. 409.

As a general proposition, mandamus is not an appropriate remedy for enforcing a contractual obligation against a public entity for at least two...