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Cuevas v. Superior Court (People)

California Court of Appeal, Fifth District

December 5, 2013

Adolfo CUEVAS, Petitioner,
v.
The SUPERIOR COURT of Tulare County, Respondent; The People, Real Party in Interest.

As Modified on Denial of Rehearing December 24, 2013

ORIGINAL PROCEEDINGS; petition for writ of mandate. Gary L. Paden, Judge. (Super. Ct. No. VCF252111)

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COUNSEL

[165 Cal.Rptr.3d 327] Michael B. Sheltzer, Public Defender, Lisa J. Bertolino, Assistant Public Defender, Timothy B. Rote, Deputy Public Defender; and Matthew E. Baker for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Real Party in Interest.

OPINION

PEÑA, J.

INTRODUCTION

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This case concerns the law of asset forfeiture and, more particularly, the procedures regarding forfeiture of property connected with unlawful drug activity, as governed by sections 11470 through 11489 of the Health and Safety Code. The questions presented are (1) may a policing agency rather than a prosecuting agency initiate these forfeiture proceedings; and (2) is substantial compliance or something less than strict compliance with the notice requirements of the forfeiture statutes sufficient to lawfully uphold the forfeiture? Our answer to both questions is " no."

Petitioner Adolfo Cuevas filed a petition for writ of mandate asking this court to direct the Superior Court of Tulare County to vacate its order denying his motion to compel the return of personal property. The personal property sought is cash seized from him by Tulare police officers and purportedly forfeited to the state through nonjudicial administrative forfeiture proceedings. Generally, he contends (1) the forfeiture proceedings were invalid because they were initiated by the City of Tulare Police Department and not a proper prosecutorial agency; (2) because the notice of nonjudicial forfeiture proceedings was not served in compliance with the applicable statutes, the notice was defective in the first instance; and (3) the notice was facially invalid because it failed to provide the appraised value of his property, reflected an incorrect location of the property's seizure, and referenced a " forfeitable" offense despite the fact he was charged with a " nonforfeitable" offense. We will grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner and his friend Christian Romero-Aguirre borrowed the car of petitioner's cousin on February 10, 2011. Around 3:00 p.m., they were parked at a Tulare shopping mall when the car's alarm went off.

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Three Tulare police officers responded to the scene and began questioning petitioner and Aguirre. While Sergeant Machado contacted petitioner's cousin to confirm ownership, Officers Hastings and Lopez conducted patdown searches of both men. The officers found approximately $7,014.37 in petitioner's pockets and $5,862.62 in Aguirre's pockets. With the assistance of a canine, an additional $3,990 was found in a space behind the car's dashboard, for a total of $16,866.99 discovered. The officers seized the money, photographed it, placed it in a plastic bag, and transported it to the police station, along with petitioner and Aguirre, for further investigation.

A second search of petitioner's wallet at the police station uncovered a folded five-dollar bill with trace amounts of methamphetamine (0.42 grams including packaging material). During four hours of interrogation, petitioner denied any knowledge of the methamphetamine. Regarding the [165 Cal.Rptr.3d 328] cash found on his person, petitioner explained he had recently sold a Chevy Tahoe for $5,500 and the remainder of the money comprised his savings. He does not trust banks and regularly carries his savings with him when he is away from home.

At some point during the interrogation, another officer, Officer Moreno, gave petitioner a City of Tulare Police Department " Notice of Nonjudicial Forfeiture Proceedings" form he had prepared listing " $16,871.99" as having been seized at " 260 S. M St.," the location of the police station, " due to violations of California Health and Safety Code Section(s) 11379 H & S." [1] The form warned:

" Pursuant to ... Section 11488.4, proceedings to forfeit this property administratively are underway. If you have a legal interest in this property, you must, within 30 days of your actual receipt of this notice, file a verified claim, stating the nature and extent of your interest with the Clerk of the Superior Court of the County of Tulare, Room 201, Visalia, California 93291. (Please use case number TG11-1144.) You must serve an endorsed copy of your claim on the District Attorney of Tulare County, Room 224, Courthouse, Visalia, California within 30 days of the filing the claim. A claim form is attached to this notice. Claim forms can be obtained from the Clerk of the Superior Court, Room 201, Courthouse, Visalia, California 93291.
" If your claim is properly filed, the District Attorney will decide whether to file a Petition for Forfeiture with the Superior Court to contest your claim. If no claim is properly filed within the time allowed, the property will be ordered forfeited to the State to be disposed of according to law."

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The Notice of Nonjudicial Forfeiture Proceedings form included a proof of personal service on petitioner and contained petitioner's signature acknowledging receipt.

The Tulare police department issued a single receipt in the names of petitioner and Aguirre for all amounts of money found, but petitioner signed the department's " Disclaimer of Ownership" form as to Aguirre's $3,990 and $5,862.62, declaring: " I am not the owner of this property; I have no interest in the property and have no claim for its return to me." Above his signature, the Disclaimer of Ownership form provided that petitioner was waiving his " right to notice of seizure of this property, and that I do not have a right to file a petition or claim for return of the property, since it is not mine." [2]

Petitioner did not file a claim.

On May 2, 2011, the Tulare County District Attorney charged petitioner with a single count of unlawful possession of a controlled substance under section 11377, subdivision (a).[3]

On June 23 and 30, 2011, and July 7, 2011, the district attorney placed a notice of nonjudicial forfeiture in the Visalia-Times Delta newspaper listing case No. TG11-1144. The advisement indicated police seized $16,871.99 from " 260 S. M St." [165 Cal.Rptr.3d 329] on February 10, 2011, " due to the violation of ... section 11379."

On July 26, 2011, the Tulare County District Attorney's Office executed a declaration of nonjudicial forfeiture in case No. TG11-1144. The declaration described the property as " $16,871.99 in U.S. Currency" seized from the police department address " in connection with violations of ... Section 11379." The declaration added that " No claim was filed for the property within 30 days of actual notice served upon interested parties or 30 days from the date of first publication of the forfeiture as required. It is hereby declared that the property has been forfeited to the State of California pursuant to ... Section 11488.4(j)." [4]

On November 8, 2011, petitioner filed a motion to suppress evidence, alleging he had been detained longer than necessary to determine he was

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lawfully in possession of his cousin's vehicle and that police lacked articulable grounds to transport him to the police station. (Pen.Code, ยง 1538.5.) The district attorney initially opposed the motion, but nevertheless moved to dismiss the case on December 9, 2011, before the motion was heard.

Petitioner filed a motion pursuant to Penal Code section 1538.5 on March 5, 2012, to compel the return of his personal property. He requested an order directing the return of his $7,014.37, driver's license, passport, cell phone, and watch. Petitioner's points and authorities argued the administrative forfeiture was " invalid in the first instance because it was initiated by the wrong party and failed to follow the statutorily mandated procedures for providing notice." (Capitalization omitted.) Petitioner also claimed the forfeiture was invalid because it was based on unconstitutionally discovered evidence and that the money was not linked to any narcotics activity. The district attorney opposed the motion as to the currency, describing it as a civil in rem matter not properly before the criminal court.[5] At a hearing on April 6, 2012, the trial court refused to hear argument on the motion and denied it because the money " was subject to a civil forfeiture proceeding." The trial court nevertheless ordered the return of petitioner's other personal property.

Petitioner subsequently filed a petition for writ of prohibition/mandate with the Appellate Division of the Superior Court of Tulare County. On May 24, 2012, a week after the writ was filed with this court, the appellate division concluded that because petitioner was charged with a felony and the motion to compel the return of property " was heard and determined by the trial judge assigned to those felony proceedings, [t]he Appellate Panel has no authority to review an order made by a superior court judge in a felony proceeding."

On May 17, 2012, petitioner filed the instant petition with this court. On July [165 Cal.Rptr.3d 330] 11, 2012, we directed real party in interest to file an informal response to the petition. Accordingly, on July 30, 2012, the People filed a response. Petitioner replied thereto on August 14, 2012.

On October 18, 2012, this court issued an order to show cause directing respondent to show cause why the relief prayed for should not be granted, and granting leave to the People and petitioner to file a written return and reply to the return, respectively.

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Thereafter, on November 29, 2012, the People filed their written return. On December 27, 2012, petitioner filed his reply to the written return.

DISCUSSION

We begin our discussion with a brief recitation of ...


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