Opinion
A148717
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WILCOX, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H56871)
Defendant Timothy Wilcox challenges an order denying in part his motion for return of property that had been seized from him when he was arrested for possessing child pornography. We shall construe this purported appeal as a petition for writ of mandate and deny the petition.
I. BACKGROUND
Defendant was charged with possession or control of child pornography with a prior conviction. (Pen. Code, § 311.11, subd. (b).) The complaint alleged three prior convictions for committing a lewd act on a child (§ 288, subd. (a)), one prior conviction for pimping a minor (§ 266h, subd. (b)), one prior conviction for possessing child pornography with a prior conviction (§ 311.11, subd. (b)), and various prior prison terms and strikes. A probation search at defendant's workplace had revealed possible images of child pornography on defendant's portable hard drive. Pursuant to a search warrant, the Alameda County Crime Lab examined the hard drive, as well as three computers and two cell phones, and found over 1,000 images of suspected child pornography on the portable hard drive. Defendant pled no contest to possessing child pornography with a prior conviction and admitted a prior conviction. Based on his review of the discovery, defense counsel agreed that there was a factual basis for the plea. On October 2, 2015, the trial court imposed the agreed-upon sentence of three years, but stayed execution of the sentence so defendant could remain in local custody to consult with his counsel about a motion to return property to him.
All statutory references are to the Penal Code.
On December 29, 2015, Defendant moved for the return of various items of personal property that had been seized from him, to wit, his portable hard drive, business cards, a memory stick, two cell phones, several adult video DVD's, a digital camera, and three flash cards. The request included "All non-contraband material contained on digital storage devices." The motion stated that it was "based on the court's inherent power to control and prevent the abuse of its process" and on section 1536.
At the March 2, 2016 hearing on the motion, defense counsel told the trial court that, based on the discovery, the hard drive did not contain any contraband. The court ordered that defense counsel be allowed to review the electronic data stored within the hard drive, memory stick, cell phones, and flash cards, and indicated it was defendant's burden to show that there was no contraband on the electronic storage devices. Defense counsel told the court, "I will have a chance to go through the material and I can state definitively that I've seen it and it is or is not." He also asked the People to file a written response if they had any particular opposition to the request, and the court replied, "Very good."
At this hearing, the trial court ordered defendant released from custody because he had served his sentence and ordered him to report to the probation department.
At the next hearing on the motion, the following colloquy took place: "The Court: I think the noncontraband—but who is going to decide? [¶] [Prosecutor]: The computers are full of - [¶] The Court: Crap. [¶] [Prosecutor]: We'll put that on the record. I provided all the information from the forensic folks at the lab who went in for me and looked at everything and then the police officers and the SAVE task force unit who were involved in the case and it's very, very clear everything remains on the computers and on the hard drive. They do not clean it so to speak. It's all on there. There's nothing computer related that he can have back, that's my position." The prosecutor agreed that the business cards, cell phone, digital camera, and flash cards contained nothing improper and could be returned, and the court so ordered. The court ordered examination of the memory stick and stated, "If there is any content, even if it's one image, I'm going to find it's contraband in total and not return it." The court then found that the external hard drive "is contaminated, that it does contain pornography that is inappropriate. I will find that the whole thing is contaminated and will not be returned." The trial court was later informed there was no evidentiary value to the memory stick and ordered it returned to defendant.
II. DISCUSSION
A. Appealability of Order
The People argue that the trial court's ruling is not an appealable order and is reviewable only by petition for writ of mandate. Under section 1237, an appeal may be taken from a final judgment of conviction or from "any order made after judgment, affecting the substantial rights of the party."
A criminal defendant may "bring a nonstatutory motion for return of property seized by warrant or incident to arrest which was not introduced into evidence but remained in possession of the seizing officer. [Citation.]" (People v. Lamonte (1997) 53 Cal.App.4th 544, 549 (Lamonte).) However, "[a]lthough the trial court has the inherent authority to entertain a 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. [Citation.] An order denying a motion for return of property—whether or not the property has been admitted as evidence in a criminal trial—is not among the matters for which an appeal is permitted under Penal Code section 1237. That section authorizes appeals from 'any order made after judgment, affecting the substantial rights of the parties.' [¶] A motion for return of property is a separate procedure from the criminal trial and is not reviewable on an appeal from an ultimate judgment of conviction. [Citation.] . . . [¶] The proper avenue of redress is through a petition for writ of mandate, not an appeal. [Citation.]" (People v. Hopkins (2009) 171 Cal.App.4th 305, 308.) Similarly, the court in People v. Tuttle (1966) 242 Cal.App.2d 883, 885, explained that a motion for return of property that had been used as an exhibit in a trial was not appealable because "[t]he proceeding resulting in such an order is entirely separate from the criminal proceeding as such because it does not involve in any manner the charge against defendant or his rights as affected by that charge."
Defendant argues that this rule does not apply here. He relies on People v. Beck (1994) 25 Cal.App.4th 1095 (Beck). His reliance is unavailing. In Beck, the defendant sought return of firearms seized pursuant to former section 12028, which the court noted "declare[d] firearms used in the commission of a crime to be a nuisance and provide[d] for the confiscation and destruction of such firearms." (Id. at p. 1097.) The appellate court noted that defendant appeared to have made a nonstatutory motion for the return of his firearms, and that the denial of such a motion was properly reviewed by writ of mandate, not by appeal. (Id. at p. 1104.) The court went on to explain, however, that the operation of former section 12028 was "automatic, upon conviction of an offense involving use of a firearm," and that there was no separate hearing because the use of the firearm in the commission of the offense was an issue in the criminal trial. (Ibid.) Therefore, the court concluded, "the confiscation provision of Penal Code section 12028 does 'involve . . . the charge against defendant or his rights as affected by that charge.' (People v. Tuttle, supra, 242 Cal.App.2d 883, 885.)" (Beck, at p. 1104.) The court therefore distinguished between the confiscation under former section 12028, which was appealable, and the denial of the motion to return the property, which was reviewable by writ of mandate. (Id. at pp. 1105-1106.)
Here, in contrast, we are concerned only with the denial of a motion for return of property. Beck does not support defendant's position that the order is reviewable on appeal. However, we have discretion to treat his purported appeal as a petition for writ of mandate, and we shall do so. (See H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366, 1367.)
B. The Merits
Defendant contends the trial court erred in failing to order the return of noncontraband items to him. He argues that even if he used the hard drive in the commission of his offense, he is not prohibited by law from possessing a portable hard drive or any nonpornographic files and photos on the drive. For this proposition, he relies upon section 1417.6, subdivision (a), which prohibits the clerk of the court from returning exhibits that are "dangerous or deadly weapons, narcotic or poisonous drugs, explosives, or any 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 . . . ." (Italics added.) Under this provision, he argues, his property is not subject to forfeiture simply because it was used in the commission of a crime; rather, it must also be contraband.
Defendant relies primarily on two cases. In Lamonte, a defendant who was convicted of burglary after attempting to pay a bill with invalid credit cards sought the return of computer and telephone equipment seized at the time of his arrest. (Lamonte, supra, 53 Cal.App.4th at p. 546.) The trial court denied the motion as to some of the items, which the People had argued he used to perpetrate credit card fraud. (Id. at pp. 547-548.) The appellate court granted the defendant's petition for writ of mandate, reasoning that the equipment did not fall within the purview of section 1417.6 because, although the defendant may have used it in committing crimes, "the equipment itself is not illegal to possess." (Id. at p. 553; accord Porno, Inc. v. Municipal Court (1973) 33 Cal.App.3d 122, 124-125 [film projectors improperly seized where reels of obscene film not permanently attached and could be inserted or removed "in a matter of seconds."].) In Aday v. Superior Court (1961) 55 Cal.2d 789, 792 (Aday), various items were seized from publishers who were charged with conspiring to publish, print and sell obscene writings. Police officers seized copies of books named in a search warrant, as well as other papers and records. (Ibid.) Our high court ruled that the petitioners were entitled to the return of the noncontraband items. (Id. at p. 800.)
Aday and Lamonte are readily distinguishable from this case. A person is not entitled to return of property that may not lawfully be possessed. (Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1547; Aday, supra, 55 Cal.2d at p. 800 ["Any property in possession of petitioners in violation of section 311 of the Penal Code [defining obscene matter] was, of course, contraband."].) Unlike the equipment at issue in Lamonte, the hard drive defendant seeks here is not an otherwise innocuous item that happened to have been used to commit unlawful activity. Rather, the trial court concluded the contraband images were found on the hard drive itself, and defendant does not dispute this finding.
Defendant argues, however, that he is entitled to the return of any noncontraband files on the hard drive. We reject this contention. First, defendant sought return of the hard drive itself, and he did not argue below that he was entitled to copies of individual files on the drive. He has therefore forfeited the argument. (See People v. Saunders (1993) 5 Cal.4th 580, 589-590.) In any case, the record is devoid of evidence that the hard drive contained any such files. Defendant's counsel had the opportunity to examine the hard drive, and he made no effort to argue that it contained noncontraband files. Defendant contends it would have been futile for his counsel to try to catalog any noncontraband files on the hard drive because the court had already said it was defendant's burden to show it contained no contraband. We are not persuaded that the court's statement made it futile for defendant to argue for access to any innocuous files. He has not shown that the trial court committed reversible error.
Nothing we say is intended to prejudice any right defendant may have to bring a new nonstatutory motion for return of noncontraband files. --------
Finally, defendant argues the order was improper because the People did not invoke section 502.01, which establishes procedures for forfeiture of computers used in committing certain enumerated offenses, including section 311.11, and places on the prosecuting attorney the burden of establishing that the property is subject to forfeiture. (§ 502.01, subds. (a)(1), (b).) We are not persuaded. First, defendant did not raise this point below and has forfeited it. (See People v. Saunders, supra, 5 Cal.4th at pp. 589-590.) In any case, the issue the court considered was not whether the hard drive should be forfeited because it was used to commit an enumerated crime, but whether it contained contraband.
III. DISPOSITION
We construe the purported appeal as a petition for writ of mandate and deny it on the merits.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.