Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. (Super. Ct. No. 30-2009-00118385)
The opinion of the court was delivered by: Aronson, J., Acting P.J.
CERTIFIED FOR PUBLICATION
Greg Barnett appeals from a judgment entered in favor of State Farm General Insurance Company (State Farm) after the trial court granted State Farm's summary judgment motion concerning the scope of a theft provision in a homeowner's policy it issued Barnett. Barnett argues the trial court erred in concluding police seizure of items pursuant to a search warrant did not constitute a theft within the policy terms. The items seized included 12 seven-foot tall marijuana plants, freezer bags containing a total of approximately five ounces of marijuana, and a tray with loose marijuana and rolling paper, which Barnett used for medicinal purposes. As we explain, the police department's acts of seizing these items pursuant to a search warrant and later destroying them did not trigger the theft provision in Barnett's policy. We therefore affirm the judgment.
I FACTUAL AND PROCEDURAL BACKGROUND
Barnett obtained a homeowner's insurance policy from State Farm for the period between April 11, 2007, and at least July 7, 2009. The policy included coverage for personal property on a named perils basis. Specifically, the policy covered "direct physical loss to property" caused by enumerated hazards, including theft. The theft provision in the policy reads as follows, extending coverage to: "Theft, including attempted theft and loss of property from a known location when it is probable that the property has been stolen." An additional provision specified that the insurance policy applied to cover personal property owned or used by Barnett if stolen "away from [his] residence premises," with certain exemptions inapplicable here.*fn1 The policy terms expressly covered "Trees, Shrubs and Other Plants," specifying: "We cover outdoor trees, shrubs, plants or lawns, on the residence premises, for direct loss caused by the following: . . . Vandalism or malicious mischief or Theft." (Boldface removed.)
Officers from the Costa Mesa Police Department (CMPD) executed a search warrant at Barnett's residence on August 10, 2007. A magistrate had issued the warrant with directions on its face "to any sheriff, policeman or peace officer in the County of Orange" as follows, "You are Therefore COMMANDED to SEARCH: THE PREMISES at 3065 Hayes Avenue . . . [¶] For the FOLLOWING PROPERTY . . . Marijuana . . . . [¶] AND TO SEIZE IT/THEM IF FOUND . . . ." The officers executing the search warrant dug up Barnett's marijuana plants from his backyard, and also seized two freezer bags of marijuana and a tray containing loose marijuana and rolling papers.
According to Barnett, the warrant would not have issued if the officer who obtained it had been more forthright. That officer, CMPD Officer Larry Fettis, prepared the statement of probable cause attached to the warrant application after receiving a tip about the extent of Barnett's marijuana cultivation, confirmed by a police helicopter overflight detecting as many as a dozen plants. Fettis noted in his warrant application "that in 2001 there was prior police documentation confirming that marijuana was found growing in the back yard of the residence." Barnett asserts Fettis would not have obtained the warrant if he had disclosed to the magistrate the details of the 2001 police contact. An officer on the helicopter overflight, Bang Le, revealed those details to Fettis before Fettis applied for the warrant.
According to Barnett, Le informed Fettis the 2001 contact arose when Barnett called the police to report vandalism at his property. The responding officers, including Le, apprehended a suspect, who, in the course of his arrest, attempted to retaliate against Barnett by disclosing Barnett grew and possessed marijuana. Barnett showed the officers the marijuana plants he was growing in his backyard at the time, provided the officers with a statement from his physician recommending his use of marijuana for certain medical conditions, and informed the officers he believed his cultivation and possession of the marijuana met the terms of the Compassionate Use Act (CUA) (Health & Saf. Code, § 11362.5). Because the police did not arrest Barnett in 2001 and took no action concerning his cultivation activity until the search Fettis initiated in 2007, Barnett attacks Fettis's warrant application as materially misleading. He complains the search warrant affidavit suggested the 2001 police contact pertained to illegal marijuana activity and failed to disclose to the magistrate the medical marijuana context for Barnett's marijuana cultivation and possession.
In the present case, the prosecutor did not file charges against Barnett for possession and cultivation of marijuana arising from Fettis's August 2007 search until the end of April 2008. In the interim, in September 2007 Barnett promptly filed a claim with State Farm under his homeowner's policy for the items taken from his home in the August search. Barnett included in his claim an appraisal of $98,000 for the marijuana and marijuana plants the police seized. State Farm initially denied the claim in November 2007, but reopened the file for reconsideration in January 2008.
By February 2008, Barnett had not been charged with any crime and therefore filed a petition with the superior court for the return of his marijuana. (See Pen. Code, §§ 1538.5, subd. (a)(1)(B) [motion for return of property seized under a warrant]; 1540 [return of property seized in absence of probable cause for a warrant to issue]; see also Health & Saf. Code, § 11473.5, subd. (a) [providing for destruction of drug evidence seized by law enforcement "unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant"].)
On March 18, 2008, the superior court denied Barnett's property return petition on grounds he exceeded the limits permitted under California's medical marijuana laws. The superior court did not specify whether the amount Barnett possessed or the amount he cultivated was excessive but, at the time, the Medical Marijuana Program Act (MMPA) established a limit of six mature marijuana plants per medical marijuana patient or primary caregiver. (But see People v. Kelly (2010) 47 Cal.4th 1008, 1043 [holding precise specification of permissible amounts of medical marijuana in Health & Saf. Code, § 11362.77, subd. (a), invalid as an unconstitutional legislative amendment of the initiative-adopted CUA].) In any event, Barnett did not seek reconsideration of his petition at the time to attempt to show, as he claimed, that he cultivated his 12 marijuana plants for himself and cooperatively on behalf of another qualified medical marijuana patient. (See Health & Saf. Code, § 11362.775 [authorizing qualified patients to associate "in order collectively or cooperatively to cultivate marijuana for medical purposes"].) Nor did Barnett then attempt to establish in court that his medical need for marijuana exceeded the MMPA's limits, as he claimed in correspondence with State Farm. (See Health & Saf. Code, § 11362.77, subd. (b) [authorizing amounts greater than MMPA's presumptive limits if patient obtains a doctor's recommendation].)
Two days after the court denied Barnett's petition, the CMPD destroyed Barnett's marijuana plants, rolling papers, and loose ounce of marijuana in a bulk narcotics burn. In April 2008, the district attorney charged Barnett with unlawful cultivation and possession of marijuana. In August 2008, the CMPD destroyed Barnett's freezer bags of marijuana in another narcotics ...