Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1068320
BAMATTRE-MANOUKIAN, Acting P.J.
I. INTRODUCTION
Defendant Javier Salazar was charged by complaint with one felony, possession of a controlled substance, Vicodin (Health & Saf. Code, § 11350, subd. (a)) and two misdemeanors, being under the influence of a controlled substance, cocaine (Health & Saf. Code, § 11550, subd. (a)) and possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). The People dismissed the marijuana count and defendant was found guilty of the remaining two counts after a jury trial. Defendant’s appeal from the judgment of conviction is currently pending in this court (People v. Salazar, H035813).
Defendant subsequently made a nonstatutory motion for return of the marijuana that police officers had seized during a search of defendant’s car. The trial court denied the motion on July 2, 2010. Only the order denying defendant’s nonstatutory motion for the return of marijuana seized incident to arrest is at issue in the present appeal.
Defendant filed a timely notice of appeal from the order denying his nonstatutory motion for return of property, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, at page 110, we provide “a brief description of the... procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”
We have also considered the threshold question of appealability on our own motion. (Olson v. Cory (1983) 35 Cal.3d 390, 398.) For the reasons discussed below, we find the challenged order to be nonappealable and therefore we will dismiss the appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the factual background is taken from the transcript of the April 12, 2010 preliminary hearing and the record in the related appeals, People v. Salazar, H035813 and People v. Salazar, H036277, of which we have taken judicial notice.
On January 15, 2010, San Jose Police Officer Todd McMahon was standing by his patrol car in a parking lot when defendant ran up to him. As Officer McMahon was speaking to defendant, he noticed the odor of marijuana. Defendant acknowledged that he had used marijuana the day before, and indicated that he had a “marijuana card.” Officer McMahon also observed that defendant was exhibiting symptoms consistent with being under the influence of a controlled substance, including eyelid fluttering, inaccurate estimation of the passage of time (“Romberg test”), agitation, moving back and forth after being told to stand still, and very rapid speech. Based on these observations, Officer McMahon formed the opinion that defendant was under the influence of a controlled substance.
After detaining defendant, Officer McMahon asked him if he had anything in his car. Defendant responded that he had marijuana. Another officer recovered Vicodin pills and a usable amount of marijuana during a search of defendant’s car.
On February 4, 2010, a complaint was filed that charged defendant with one felony, possession of a controlled substance, Vicodin (Health & Saf. Code, § 11350, subd. (a); count 1) and two misdemeanors, being under the influence of a controlled substance, cocaine (Health & Saf. Code, § 11550, subd. (a); count 2) and possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b); count 3). After the preliminary hearing held on April 12, 2010, defendant was held to answer on all three counts. An information alleging the same three counts was filed on April 22, 2010.
On June 25, 2010, the prosecution dismissed count 3, possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b).) After a jury trial, defendant was found guilty on counts 1 and 2. On July 1, 2010, the trial court suspended imposition of sentence and placed defendant on Proposition 36 probation.
On July 2, 2010, during a further hearing on other matters, defendant made an oral motion for return of the marijuana that had been seized during the search of his car that the trial court denied, as set forth below:
“THE COURT: And the medical condition for which you have the cannabis card?
“THE DEFENDANT: I have anxiety, and I have migraines.
“THE COURT: Is this a new card?
“THE DEFENDANT: I’ve had it for two years. It expired on the 19th so I went and renewed. I have my own card also.
“THE COURT: So this is a new one?
“THE DEFENDANT: That’s the active one. That’s the one that’s in the background. [¶]... [¶]
“DEFENSE COUNSEL: Your Honor, then the purpose of submitting the new card, it’s for two reasons: One, is to request that the Court permit [defendant] to continue using his medication during the period of probation, which is statutorily permitted; and second, we request for [sic] return of property, the medicine that was seized on the date of this incident. He did have a valid card at that time, which was the basis of the earlier [Health & Safty Code, ] § 11379[, subdivision (b)] charge.
“THE COURT: Well, I typically don’t return contraband. It’s marijuana, so I’m not going to return it, but he--obviously he can still use it without being in violation of probation.”
III. DISCUSSION
On August 26, 2010, defendant filed a notice of appeal from the July 2, 2010 order denying his nonstatutory motion for return of property. The notice of appeal states that the appeal is authorized by Penal Code section 1237, subdivision (b), which provides, “An appeal may be taken by the defendant: [¶]... [¶] From any order made after judgment, affecting the substantial rights of the party.”
Although the parties have not questioned the appealability of the July 2, 2010 order, “since the question of appealability goes to our jurisdiction, we are duty-bound to consider it on our own motion.” (Olson v. Cory, supra, 35 Cal.3d at p. 398; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1413.) Having considered the matter, we find that it is well established that an order denying a nonstatutory motion for return of seized property, including marijuana, is not an appealable order. (People v. Hopkins (2009) 171 Cal.App.4th 305, 308 (Hopkins); People v. Gershenhorn (1964) 225 Cal.App.2d 122, 125-126; People v. Tuttle (1966) 242 Cal.App.2d 883, 885 (Tuttle).)
In Hopkins, the appellate court stated that “[a]lthough the trial court has the inherent authority to entertain the motion for return of property seized under color of law, the right to appeal is wholly statutory and a judgment or order is not appealable unless it is expressly made so by statute.” (Hopkins, supra, 171 Cal.App.4th at p. 308.) The court determined that an order denying a motion for return of property is nonappealable “because such an order is not listed among any of the matters for which an appeal is authorized by Penal Code section 1237.” (Ibid.)
Contrary to defendant’s implicit assumption in his notice of appeal, the order denying his motion for return of property is not appealable under Penal Code section 1237, subdivision (b) as a postjudgment order affecting a defendant’s substantial rights. As explained in Tuttle, a nonstatutory motion for return of property “is not directed to the criminal action resulting in defendant’s conviction; and the order therein could not have affected any substantial right subject to that action.” (Tuttle, supra, 242 Cal.App.2d at p. 885.)
However, as other appellate courts have determined, a defendant may properly challenge an order denying a nonstatutory motion for return of property by a petition for writ of mandate. (Hopkins, supra, 171 Cal.App.4th at pp. 308-309; People v. Gershenhorn, supra, 225 Cal.App.2d at p. 126.) We note that defendant has filed a petition for writ of mandate in this court in which he challenges the July 2, 2010 order denying his nonstatutory motion for return of property (Salazar v. Superior Court, H036277). On January 27, 2011, we ordered defendant’s writ petition to be considered with this appeal. We have disposed of the writ petition by separate order filed this day.
IV. DISPOSITION
The appeal is dismissed.
WE CONCUR: MIHARA, J., DUFFY, J.