Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Super. Ct. No. 05CF0203, David Hoffer, Judge, and Cheryl L. Leininger, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21). Petition granted.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney and Matthew Lockhart, Deputy District Attorney for Real Party in Interest.
OPINION
Before Rylaarsdam, Acting P.J., Aronson, J., and Ikola, J.
Approximately four months after petitioner, Alnardo Burgos, was sentenced, the superior court denied his motion for a return of property. Burgos contends the trial court abused its discretion when it determined the property was an instrument of the crime for which he pleaded guilty and denied the motion. The People concede the petition has merit and we also agree. Accordingly, the petition is granted.
FACTS
In March 2006, Burgos was sentenced to two years and eight months after pleading guilty to possession of a forged document, forgery of a driver’s license or identification card, false representation to a peace officer, and also admitting that he suffered four prior convictions. Approximately four months later in July 2006, Burgos filed a motion for return of property seeking the return of a printer and two laptop computers that were apparently seized at a location where “circumstances of the crime [ ] where everything was found.” At the hearing on the motion, counsel argued that the confiscated equipment had been in possession of the police department for over a year and a half with no evidence from either the hard drive or print histories that would demonstrate the printer and computers were in fact instruments of the crime, and therefore should be returned.
Although the prosecutor presented no evidence the printer and computers were in fact instruments of the crime, the trial court denied the motion stating, “[t]he court finds by the preponderance that they are instrumentalities of this particular crime that the defendant has been convicted of. For that reason, the court is not going to release the property back to the defendant.”
After Burgos filed a notice of appeal from the trial court’s ruling, this court advised Burgos that it was considering dismissing the appeal on the basis that the denial of a post judgment motion for return of property is not an appealable order. (Pen. Code, § 1237; Flack v. Municipal Court (1967) 66 Cal.2d 981, 984; People v. Gershenhorn (1964) 225 Cal.App.2d 122, 125-126; People v. Superior Court (1972) 28 Cal.App.3d 600, 609-611.) In response, Burgos filed a request asking the court to treat the notice of appeal as a petition for a writ of mandate and for the appointment of counsel. The court granted Burgos’s requests and appointed counsel who filed a supplemental petition seeking a peremptory writ of mandate. The court requested and received an informal response from the People in which they concede the petition has merit. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISCUSSION
Discretionary review is available by writ of mandate from the denial of a motion for return of property. (Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 364.) Writ inquires “shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5(b).)
Penal Code section 1417.5, subdivision (b) states “[t]he court shall order the release of exhibits free of charge, without prejudice to the state, upon application, to the following: [¶] (1) First, the person from whom the exhibits were taken into custody, provided that the person was in lawful possession of the exhibits. [¶] (2) Second, a person establishing title to, or a right to possession of, the exhibits.” When the trial court refuses to return an exhibit upon the request of a party, the party claiming the exhibit has available to him or her review by writ of mandate to determine whether the court was justified in refusing to return the exhibit. (People v. Superior Court, supra, 28 Cal.App.3d 600, 615.) Although the property at issue was never an exhibit within the meaning of Penal Code section 1417.5, “[f]or the purposes of lawful disposition of the property, however, we see no reason to distinguish between seized property used as exhibits and seized property which was not used.” (People v. Lamonte (1997) 53 Cal.App.4th 544, 551.)
In People v. Lamonte (1997) 53 Cal.App.4th 544, before the defendant pleaded guilty to burglary and being a felon in possession of a firearm with a Harvey waiver, he was also charged with possession of a short-barreled shotgun, possession of nunchakus, escape from arrest, acquiring access card account information without consent, theft of an access card, unlawful use of a stolen access card, and receiving stolen property. A consent search of his van disclosed numerous credit cards, identification cards with Lamonte’s picture and others’ names, laminating equipment, papers with handwritten credit card numbers, a cellular telephone, a laptop computer, a telephone decoder, telephone connectors, sterile gloves, a loaded, sawed-off shotgun and nunchakus.
People v. Harvey (1979) 25 Cal.3d 754
After he was sentenced, Lamonte moved for the return of property of numerous items which included computer and telephone equipment on the basis that it was not contraband, stolen or subject to forfeiture. The People opposed returning some of the property on the basis that the Harvey waiver permits the sentencing judge to consider the entire factual background of the case, including any dismissed or stricken charges, allegations or cases, and also because Lamonte not only admitted but actually bragged to a police officer about how he used his computers to access bank computers to obtain credit card and personal identification numbers, and used the computer software to make designs for the front of the counterfeit access cards. (People v. Lamonte, supra, 53 Cal.App.4th at p. 548.) Without reaching the issue of the Harvey waiver, the court held that although Lamonte may have used the equipment in committing crimes, the equipment itself is not illegal to possess and must be returned because Penal Code section 1417.6 prohibits return of “‘property of any kind or character whatsoever the possession of which is prohibited by law and that was used by a defendant in the commission of the crime of which the defendant was convicted. . . .’ [original italics.]” (Id. at p. 553.)
In this case, the People provided no evidence in the trial court that the printer and computers were stolen, used as instrumentalities of the crimes to which Burgos pleaded guilty, or constitute contraband, which is described as “goods or merchandise whose importation, exportation, or possession is forbidden[ ] [citation].” As such, the trial court’s ruling denying the motion for a return of property is not supported by the evidence. (People v. Lamonte, supra, 53 Cal.App.4th at p. 552.)
While it is certainly understandable that a court will want to prevent future criminal acts by refusing to return property that may be used as an aid to criminal conduct, however, a court “may not refuse to return legal property to a convicted person to deter possible future crime.” (People v. Lamonte, supra, 53 Cal.App.4th at p. 553.) The District Attorney agrees the petition has merit and states that “[a]fter review of the law and case file, the People concede that the petition for a peremptory writ of mandate has merit and should be granted.”
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order on August 16, 2006, denying petitioner’s motion for a return of property, and to enter a new and different order granting the motion. This opinion is final as to this court forthwith.