P. v. Ames

Filed 10/2/09 P. v. Ames CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County and petition for writ of mandate and request for stay, Albert T. Harutunian III, Judge. Appeal dismissed; petition denied.

Michael Edward Ames entered a negotiated guilty plea to three counts of residential burglary while on parole (Pen. Code,  459, 460, 1203.85, subd. (b)).[1] In January 2008, the court sentenced Ames to six years in prisonthe six-year upper term on one count, and concurrent four-year middle terms on the remaining two counts. In February, Ames filed a motion for return of 107 items of personal property, claiming that return of these items was a term of his plea agreement. In March, the court denied the motion without prejudice and appointed counsel to assist Ames in filing a motion to withdraw his guilty plea. No withdrawal motion was filed. In September, Ames filed another motion for return of property.

In October 2008, the court granted Ames's motion for return of property as to four items, pursuant to the parties' stipulation.[2] The court denied the motion as to the remaining 103 items. These 103 items included televisions; tools (six drills, various saws and two jackhammers); stereo equipment; a fax machine; computer equipment; five laptop computers; four desktop computers; two DVD players; three CD players; eight iPods; three digital cameras; a camcorder; a new Xbox game console, still in its package; three full sets of golf clubs and miscellaneous additional clubs; two jackets bearing the names of different security companies;[3] a credit card machine; and approximately 12 papers bearing names of entities and persons other than Ames, including credit card statements, a tax form and a bill.[4] The court found that the presumption that the possessor of an item is the owner was "completely undercut" by Ames's extensive history of committing theft crimes, his possession of numerous stolen items, and the fact that he had "multiple items of . . . the type of items that are often used in theft-related offenses, such as having laptop computers and desktop computers for somebody who is not in the computer business. . . ."

Ames filed a notice of appeal from the denial of his motion for return of property. He also filed a petition for writ of mandate challenging the denial of the motion, contending that the return of his property was a term of the plea agreement, and requesting specific performance of the agreement.[5] We ordered that the appeal and petition be considered together. We now dismiss the appeal and deny the petition.

The Appeal is Procedurally Improper

Appointed appellate counsel filed a brief summarizing the facts and proceedings below. In the brief, counsel asked this court to review the record for error, citing People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). In the ordinary course of processing this appeal, the court granted Ames permission to file a brief on his own behalf. He did not respond.

A close reading of counsel's brief reveals that it is not a traditional Wende brief. Rather than listing possible, but not arguable, issues pursuant to Anders, counsel expressly argues that the People did not meet their burden of proof in the motion for return of property, that is, they did not establish that the property in question was stolen. Counsel's filing of a brief arguing a specific issue removes this case from Wende's ambit. (People v. Woodard (1986) 184 Cal.App.3d 944.)

The Anders procedure is limited to the criminal defendant's "first appeal as of right." (In re Sade C. (1996) 13 Cal.4th 952, 978.) As counsel acknowledges, Ames challenged his conviction in an earlier appeal. Wende review is thus unavailable.[6]

This appeal is procedurally improper for one additional reason: the denial of the motion to return property is not appealable. (People v. Hopkins (2009) 171 Cal.App.4th 305, 308.) Appointed counsel concedes as much in his brief.

For the above reasons, we dismiss the appeal.

The Writ Petition Lacks Merit

After final determination of a criminal action, the defendant has a due process right to seek return of property seized by the police. (People v. Lamonte (1997) 53 Cal.App.4th 544, 549-551.) Stolen property need not be returned to the person from whom it was seized (Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1547), even if that person was not charged with or convicted of any crime and even if no third party owner is found (People v. Superior Court (McGraw) (1979) 100 Cal.App.3d 154, 157). However, if there is no conviction of theft and no criminal charges pending, the person from whom the property was seized is presumed to be the owner and the People must prove by a preponderance of the evidence that the property was stolen. (Ensoniq Corp. v. Superior Court, supra, 65 Cal.App.4th at pp. 1549-1550.)

Assuming arguendo that Ames was entitled to the presumption of ownership, the People overcame the presumption.[7] At the hearing on Ames's motion for return of property, a police sergeant testified that during the search of Ames's property, the police concentrated on items with serial numbers and left at least 200 to 300 items behind. Of the 107 items that police impounded, owners had been located for six items, including a laptop computer, a set of boxing gloves, and "a television with a trinket plate draped over it." Those items were returned to their owners on the day of Ames's arrest. The police forensic laboratory checked six of the impounded computers and found ownership information for five of them. The sergeant had contacted three of the five owners and confirmed that their computers had been taken in burglaries of vehicles or storage facilities. The police continued to search for the owners of the remaining items. The sergeant testified that it was rare that owners recorded or remembered serial numbers, and it was doubtful that the police would be able to link any of the seized tools to crime victims.

According to the People's motion, Ames has a lengthy history of theft-related convictions (burglary, receiving stolen property, vehicle theft, grand theft, possession of burglary tools, and using an access account without consent). The police sergeant testified that several of the seized items had been stolen and did not belong to Ames. Although Ames had never worked as a security guard, two jackets bearing names of security companies were among the seized property. He attempted to explain his possession of the tools by claiming that he was an electrician and did odd jobs, but he was unable to verify his claim. Trial counsel, on the other hand, claimed that Ames was a plumber. In addition to the items that the police sergeant identified as stolen, police found credit card statements, a tax form, and a bill that were not in his name. He had other property not usually possessed by an individual who is not in business, such as eight iPods and a credit card machine. The court correctly noted that Ames had multiple computers, which are often used in theft-related offenses, but that he was not in the computer business. These factors constitute proof, by a preponderance of the evidence, that the property that Ames sought to be returned to him was stolen. The court therefore properly denied his motion.

DISPOSITION

The appeal is dismissed. The petition is denied.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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[1] The preliminary hearing transcript, which formed the factual basis for the plea, is not part of the record.

[2] The items covered by the stipulation were two envelopes addressed to Ames, a T-Mobile cellular telephone box, miscellaneous documents bearing Ames's name, and a letter addressed to him.

[3] Ames never worked as a security guard. He told a police detective that he was an electrician and that he did odd jobs, but he was unable to furnish any paystubs, work verification, or the name or address of an employer. In March 2008, Ames's counsel told the court that Ames was a plumber.

[4] A list of property that Ames requested be returned is included in the record as an attachment to Ames's motion and as an attachment to his writ petition. Because the list is difficult to read in some places and illegible in others, we cannot ascertain exactly what property Ames sought.

[5] This contention is meritless. A handwritten note on the change of plea form states "Defendant demands return of his personal property impounded." There is no indication in the record that return of the property was a term of the plea bargain.

[6] In any case, a review of the record pursuant to Wende and Anders has disclosed no reasonably arguable appellate issues, and Ames has been competently represented by counsel in this appeal.

[7] The ownership presumption arguably does not apply to Ames because he pled guilty to the three counts of residential burglary, and was charged with three additional counts of burglary, and two counts of receiving stolen property in this case. These additional charges were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). In a second case, Ames was apparently charged with one count of residential burglary, four counts of burglary, two counts of receiving stolen property, and one count of petty theft with a prior theft conviction. According to the People's motion, some of the items that Ames sought to be returned were the fruits of his criminal activity in the second case.

In light of our conclusion that Ames cannot prevail even with the presumption in his favor, we need not address the effect of the burglary convictions and the other charges on the applicability of the presumption. (Cf. People v. Lamonte, supra, 53 Cal.App.4th at p. 553 [This court concluded that the property was not contraband; this court therefore did "not address the effect of [the defendant's] Harvey waiver on questionable property relating to dismissed counts."].)