IN THE COURT OF APPEAL' FIRST AP;PELLA DISTRICT, DIVISION TWO TE THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and

Respondent, v. JUAN MARAVILLA, Defendant and Appellant. AI08328

JUAN MARAVILLA, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent, THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Contra Costa County Superior Court No. 50416958 The Honorable William D. O'Malley, Judge

RESPONDENT'S BRIEF AND OPPOSITION TO PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION
BILL LOCKYER Attorney General of the State of California ROBERTR.ANDERSON Chief Assistant Attorney General
GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General

RENE A. CHACON Supervising Deputy Attorney General State Bar No. 119624 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5957 Fax: (415) 703-1234 Attorneys for RespondentlReal Party

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TABLE OF CONTENTS
Page

STATEMENT OF THE CASE STATEMENT OF FACTS ARGUMENT APPEALDOES NOT LIE FROM THE ORDER DENYING THE RETURN OF PROPERTY; MOREOVER, THE PETITIONFOR WRIT OF MANDATE IS UNTIMELY AND WITHOUT MERIT A. Appeal Does Not Lie From The Trial Court's Order B. The Petition For Writ Is Untimely C. In Any Event, Maravilla Is Not Entitled To Mandamus Relief CONCLUSION

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TABLE OF AUTHORITIES Page Cases
Chavez v. Superior Court (2004) 123 Ca1.App.4th 104

3, 7 8

D'Amico v. Board of Medical Examiners (1974) 11 Ca1.3d1
Franklin v. Municipal Court (1972) 26 Ca1.App.3d 884 Fuss v. Superior Court (1991) 228 Ca1.App.3d 556 Gershenborn v. Superior Court (1964) 227 Ca1.App.2d 361 Krueger v. Superior Court (1979) 89 Ca1.App.3d 934 Minsky v. City of Los Angeles (1974) 11 Ca1.3d 113 People ex reI. Younger v. County of EI Dorado (1971) 5 Ca1.3d 480

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5

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4

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People v. Beck (1994) 25 Ca1.App.4th1095 People v. Mower (2002) 28 Ca1.4th457
People v. Municipal Court (Mercer) (1979) 99 Ca1.App.3d 749 People v. Rigo (1999) 69 Ca1.App.4th 409

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TABLE OF AUTHORITIES (continued) Page
People v. Tilehkooh (2003) 113 Cal.AppAth 1433 People v. Zapien (1993) 4 Cal.4th 929 Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496 Portillo v. Superior Court (1992) 10 Cal.AppAth 1829 Reynolds v. Superior Court (1883) 64 Cal. 372 Scott v. Municipal Court (1974) 40 Cal.App.3d 995, Suki, Inc. v. Superior Court (1976) 60 Cal.App.3d 616 8

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Statutes Code of Civil Procedure § 1085, subd. (a) Health & Safety Code § 11054, subd. (d)(13) § 11357 § 11358 § 11362.5 § 11362.765 § 11470 § 11470, subds. (a) & (b) § 11473 § 11473.5 § 11473.5, subd. (a) § 11475 111

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TABLE OF AUTHORITIES (continued) Page § 11476 Penal Code § 1538.5, subd. (j)
Other Authorities

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Proposition 215 ("Compassionate Use Act")

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IV

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION TWO THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, AI08328

v.
JUAN MARAVILLA, Defendant and Appellant.

JUAN MARAVILLA, Petitioner,

v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent, THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. STATEMENT OF THE CASE
On September 10,2004, the superior court ordered the Antioch Police Department to return to putative appellant Juan Maravilla ("Maravilla") his

grow lights and miscellaneousgrow equipment. (CT 19-21.) The court denied Maravilla's request for the return of a shotgun, marijuana plants, and dried marijuana. (Ibid.) On November 4, 2004, Maravilla filed a notice of appeal from the September 10, 2004 order. (CT 22.) STATEMENT OF FACTS The prosecutor filed opposition to Maravilla's petition for the return of property and summarized the underlying facts as follows: 1

On June 3, 2003, Juan Maravilla. . . was arrested for a violation of Cal. Health and Safety Code section 11358 (unauthorized possession and cultivation of marijuana) [sicl!]. Pursuant to this arrest, Antioch police departmentseizednine marijuanaplants, 3 bags containing dried marijuanaleaves,a prescriptionpill bottle containing numerous marijuana cigarettes, a box containing [sic] and timer, miracle grow, a filter screen, pliers, hydrogen peroxide, alcohol, and marijuana seeds, a fluorescent light with power converters, an extension cord, a fan, a box of shotgun shells, and a New England Pardner shotgun. No charges were filed in the case. The defendant has now petitioned this court for the return of all of his property seized in the arrest. . . .
(CT 10-11.) When the matter was called for a hearing on September 10,2004, the trial court ordered the return of the grow lights and growing equipment, but declined to order the return of the shotgun, marijuana plants, and dried marijuana. The court stated it would "rely on the fact it's still a federal crime,"

and that Maravilla had not "made [a] sufficient showing. . . on this record that [he] ha[s] the right to have it back." (RT 4; CT 19.) On November 4, 2004, Maravilla filed a notice of appeal, and on February 4,2005, he filed the present Opening Brief, which he urges the court
to consider as an appeal or, in the alternative, as a petition for writ of mandate.

(See AOB 1-4.)

1. Health and Safety Code section 11358 describes the offense of unlawful cultivation of marijuana. The offense of unlawful possession of marijuana is codified at Health and Safety Code section 11357. 2

ARGUMENT

APPEAL DOES NOT LIE FROM THE ORDER DENYING THE RETURN OF PROPERTY; MOREOVER, THE PETITION FOR WRIT OF MANDATE IS UN1;IMELY AND WITHOUT MERIT
Couched in the alternative as either a direct appeal or a petition for the extraordinary writ of mandate, Maravilla seeks to have this court overturn the superior court's order denying the return of his ten immature marijuana plants and one gram of dried marijuana seized by Antioch police. (AOB 1-4.)

Maravilla is not entitled to relief. First, appeal does not lie from the order denying the return of property. Secondly, Maravilla's petition is untimely. Third, Maravilla cannot demonstrate, as he would have to in order to obtain mandamus relief, that he had a clear, present and beneficial right to the return
of property in question and that the trial court had no discretion to deny him that right.

A. Appeal Does Not Lie From The Trial Court's Order
A court's decision not to return property is normally not an appealable order. (See People v. Beck (1994) 25 Ca1.AppAth 1095, 1103.) Rather, such an

order must be reviewed through a petition for writ of mandate. (Id. at p. 1104; accord, Minsky v. City of Los Angeles (1974) 11 Ca1.3d 113, 123; Chavez v. Superior Court (2004) 123 Ca1.AppAth104, 108; Suki, Inc. v. Superior Court (1976) 60 Ca1.App.3d 616, 624; Gershenborn v. Superior Court (1964) 227 Ca1.App.2d361, 366.) It makes no difference that Maravilla would have been able to file a statutory motion for suppression of evidence and/or return of property had misdemeanor charges been filed against him and that he would have had a right to appeal an adverse decision to the appellate division of the superior court. (See AOB 1, citing Pen. Code, § 1538.5, subd. (j).) The fact of 3

the matter is that there was no criminal case, or any order subsumed within one, from which Maravilla could appeal. Maravilla cites no authority for the

proposition that he should be given access to a statutory right to appeal that is reserved for defendants facing criminalpenalties includingpotentialloss of their liberty, but not non-defendant citizens who merely claim to be aggrieved by a court's order affecting their asserted property rights. Finally, contrary to
Maravilla's suggestion, it is not as though the superior court's order was immune from any review and that he must have an appeal since no other alternative exists. As discussed below, he could have challenged it via a petition for writ of mandate, which is precisely what he attempts to do now.

B. The Petition For Writ Is Untimely
Alternatively, Maravilla asks the court to consider his appeal a petition for writ of mandate alleging abuse oftrial court discretion. However, Maravilla

filed the instant brief five months after the trial court partially denied his petition for the return of property. Moreover, the underlying seizure occurred on June 3, 2003. (CT 1, 5, 6.) The instant petition is untimely and Maravilla fails to demonstrate diligence or extraordinary circumstances justifying the
delay. (Reynolds v. Superior Court (1883) 64 Cal. 372, 373; Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499; Krueger v. Superior Court (1979) 89 Cal.App.3d 934,938; People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749, 752; Scott v. Municipal Court (1974) 40

Cal.App.3d 995,996-997.) "An appellate court may consider a petition for an extraordinary writ at any time [citation], but has discretion to deny a petition
filed after the 60-day period applicable to appeals, and should do so absent 'extraordinary circumstances' justifying the delay." (Popelka, Allard, McCowan & Jones v. Superior Court, supra, 107 Cal.App.3d at p. 499.) Here, presumably over the substantial time that has lapsed, the police have acted to destroy the

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contraband seized in 2003, or at the very least, the nine live plants have by now wasted away. The claim is arguably moot. Further, the court should reject the

petition as procedurally barred for unjustified delay. Certainly, Maravilla should not be able to avoid a finding of improper
delay simply because he chose the wrong avenue of review-i.e., filing a notice

of appeal which then had the effect of setting into motion the more deliberate

pace of a criminal appeal-and

then inappropriately relied on that more

deliberate pacing. This miscalculation is attributable to Maravilla and cannot
constitute "extraordinary circumstances" sufficient to justify the delay in

pressing this claim in what is in all likelihood a moot context. Of course, this is

also a compelling reason why the supposedly aggrieved party must proceed via the more expedient avenue of extraordinary writ in a situation like this.

c.

In Any Event, Maravilla Is Not Entitled To Mandamus Relief
Even ifthe merits of Maravilla's claim were considered, that claim may

not warrant mandamus relief. A writ of mandate "may be issued by any court,

. . . to any inferior tribunal, . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; . . ." (Code ofCiv. Proc., § 1085, subd. (a).) But a petitioner is only able to obtain relief via this remedy ifhe can establish that there is a clear, present and usually ministerial duty upon the part of the trial court and that he has a clear, present and beneficialright to the performance of that duty." (Portillov.Superior Court (1992) 10 Cal.AppAth 1829, 1833; see also People ex reI. Younger v. County ofEI Dorado (1971) 5 Ca1.3d480,491; Franklin v.Municipal Court (1972) 26 Cal.App.3d 884, 887-898.) In addition, "the duty sought to be enforced must not involve the exercise ofjudgment or discretion." (Portillo v.Superior Court,
supra, 10 Cal.AppAth atp. 1833; Fuss v. Superior Court (1991) 228 Cal.App.3d 556, 560.) 5

The Health and Safety Code lists marijuana as a Schedule I controlled substance, specifically, a hallucinogenic substance. (Health & Saf. Code, § 11054, subd. (d)(13).) Under Health and Safety Code sections 11357 and 11358,a person is prohibited from possessing, planting, cultivating, harvesting, drying, or processing marijuana, except as otherwise provided by law. Proposition 215, commonly known as the "Compassionate Use Act," grants criminal defendants limited immunity from prosecution by decriminalizing conduct that otherwise would constitute a criminal offense. (People v. Mower (2002) 28 Cal.4th 457, 470.) In apply the limited immunity to possess and cultivate marijuana for medical purposes, a criminal defendant may move to set
aside an indictment or information before the trial court or assert his immunity as a defense during the trial. (Id. at p. 470; see also Health & Saf. Code, § 11362.765 [qualified patients, their primary care givers, and assistants not subject to criminal liability for certain marijuana-related offenses].) But,

because the Act does not operate to completely immunize a person from prosecution, police officers may continue to perform their duties of making arrests when there is probable cause that a person is illegally possessing or cultivating marijuana. (People v. Mower, supra, 28 Cal.4th at p. 469.) Once a person is arrested and his marijuana is seized, other statutes apply in disposing of the seized items. Health and Safety Code section 11470 lists the various items that are subject to forfeiture, including controlled substances and all raw materials, products, and equipment used in manufacturing any controlled substance. (Health & Saf. Code, § 11470,subds. (a) & (b).) The Legislature specifically designated Schedule I controlled substances as subject to seizure and summary forfeiture to the state. (Health & Saf. Code, §§ 11475, 11476.)
Under Health and Safety Code section 11473, the court must order the destruction of the forfeited items upon conviction. Even without a conviction,

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in the absence of a finding that the seized controlled substances were lawfully possessed, the court is authorized to order the destruction of controlled
substances under Health and Safety Code section 11473.5. That provision

states: "All seizures of controlled substances, instruments, or paraphernalia used

for unlawfully using or administering a controlled substance which are in possession of any city,county,or state official as found property, or as the result of a case in which no trial was had or which was disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyedby order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant." (Health & Saf. Code, § 11473.5, subd. (a).) Under this statutory scheme, once the officer seizes a ScheduleI controlled substance, its destruction is required unless the court finds it was lawfully possessed. Significantly, the Compassionate Use Act does not provide an alternative method of disposing of marijuana that is claimed to have been possessed for medical purposes. (See Health & Saf. Code, § 11362.5; see also
Chavez v. Superior Court, supra, 123 Ca1.AppAth at p. 111 ["noticeably absent from the statute is a provision which requires, or authorizes, the court to return confiscated marijuana"].) While the Act provides a defense to certain qualifying activities, it does not convert a Schedule I controlled substance into an innocuous item of personal property that must be preserved and returned absent a finding that it was lawfully possessed. Based on the current law, marijuana

continues to be a controlled substance, and as such, continues to be subject to seizure, forfeiture, and destruction.
The question thus reduces to whether, on this record, the trial court was compelled to find under state law that Maravilla lawfully possessed the

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marijuana at issue and then had no option other than to order its return? But the record does not dictate such a finding. First, the fact that no criminal charges were filed does not establish lawful possession and cultivation but rather indicates an exercise of prosecutorial discretion or possibly leniency. Second,
Maravilla's supporting documents showing his purported entitlement to medical marijuana all post-date the June 3, 2003 seizure. (See CT 6 [police certificate

of release form dated June 3, 2003].)

The Oakland Cannabis Buyers'

Cooperative member card shows that it was issued on April 9, 2004. (CT 8.) The Physician's Statement shows that it was signed on April 17, 2004, and would expire on April 17, 2005. (CT 9.) Nothing was presented to the trial
court showing that on June 3, 2003, Maravilla was entitled to possess medical marijuana. (People v. Rigo (1999) 69 Cal.App.4th 409, 412-413 [post-arrest medical authorization is not sufficient to make out compassionate-use defense].) Moreover, also cutting against the legitimacy of his supposed authorization at the time of his arrest, Maravilla presented no evidence showing that he presented

2. The trial court alsoreferredto the continuingprohibition of marijuana possession underfederal law as a basis for its ruling. (RT 4.) Respondent does not rely on this rationale in defending the court's ruling, and instead acknowledges that-both generally and in the specific context of interpreting the Compassionate Use Act-it is not the province of state courts to enforce federal laws. (See People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 14451446.) Nonetheless, the record also indicates that the trial court found Maravilla had "not made [a] sufficient showing. . . on this record that [he] ha[s] the right to have it back." (RT 4.) The latter reasoning was valid and supportsthe ultimateruling despitethe court's previous commentsabout federal law. "'No rule of decision is better or more firmlyestablishedby authority,nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" (D'Amico v. Board of Medical Examiners (1974) 11 Ca1.3d1, 19; accord, People v. Zapien (1993) 4 Ca1.4th929, 976.) 8

arresting officers with any proof of authorization to possess medical marijuana, as a legitimate user in that situation would have had every motivation to do.

Accordingly, the record in this case permitted the trial court to find that, under California law, Maravilla was not entitled to the return of the marijuana in question. It follows that he cannot establish a clear, present, and
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beneficial right to its return.

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CONCLUSION Accordingly, respondent respectfully requests that the appeal be stricken, and that the petition for writ of mandate be denied as untimely and baseless.

Dated: April 6, 2005
Respectfully submitted, BILL LOCKYER Attorney General of the State of California ROBERT R. ANDERSON Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General

RENE A. CHACON Supervising Deputy Attorney General Attorneys for Respondent/Real Party in Interest
RAC:eaw SF2004DA1370

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CERTIFICATE OF COMPLIANCE

I certify that the attached RESPONDENT'S BRIEF uses a 13 point Times New Roman font and contains 2421 words.

Dated: April 6, 2005 Respectfully submitted, BILL LOCKYER Attorney General of the State of California

72-1 (:L
RENE A. CHACON Supervising Deputy Attorney General Attorneys for Respondent/Real Party in Interest

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Juan Maravilla I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office ofthe Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On April 6. 2005, I served the attached No.: AI08328

RESPONDENT'S BRIEF AND OPPOSITION TO PETITION FOR WRIT OF MANDATE AND/OR PROHIBITION
by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office ofthe Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, California 94102-7004, addressed as follows: Joseph D. Elford (S.B. No. 189934) Americans for Safe Access P.O. Box 427112 San Francisco, CA 94142 Contra Costa County Superior Court Attn: Stephen L. Weir, Clerk Criminal Division P.O. Box 911 Martinez, CA 94553 First District Appellate Project Attn: Executive Director 730 Harrison Street, Suite 201 San Francisco, CA 94107

Honorable Robert Kochly District Attorney County of Contra Costa P.O. Box 670 725 Court Street, Room 402 Martinez, CA 94553

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on April 6, 2005, at San Francisco, California.

EVANGELINE A. WILLIAMS Declarant