P.v . Willie

Filed 8/30/07 P.v . Willie CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Chili Willie purports to appeal from the trial courts failure to return to him money that was confiscated when he was arrested. We conclude the ruling from which he has appealed is a nonappealable order and dismiss his appeal.

BACKGROUND

Sentence and Restitution Proceedings

In 2001, defendant was sentenced to a 14-year, eight-month prison term and ordered to pay a $10,000 restitution fine.^[1](People v. Willie (2005) 133 Cal.App.4th 43, 46 (Willie).) Shortly after he was sentenced, a dispute arose between the City of Sonoma Police Department, which was holding approximately $12,000 it had seized incident to defendants arrest, and the Sonoma County District Attorneys Office, which wanted the money released to pay the restitution fine. (Ibid.)

The Victim Compensation Board (VCB) obtained a writ of execution of the restitution fine order. On February 12, 2004, it served notice of levy on the police department and on defendant. (Willie, supra, 133 Cal.App.4th at p. 47.) The police department declined to release the money, and defendant filed an opposition to the writ of execution. (Ibid.) A hearing was set for May 13, 2004. (Ibid.)

On or about March 3, 2004, defendant, in propria persona, also filed a claim of exemption (enforcement of judgment). He described the claimed exempt property as that in the levy on the police department. He asserted it was exempt under Code of Civil Procedure sections 704.070 and 704.140, that the money was legally his, and that he needed it for ongoing medical and legal expenses.

On March 11, 2004, the VCB filed its opposition to defendants claim of exemption, on the grounds he was incarcerated with the Department of Corrections and there was no evidence that he needed the funds, and a hearing was set for May 13, 2004.

On May 11, 2004, the district attorney filed a separate motion, seeking the release of defendants money from the police department to the VCB, as payment in satisfaction of the restitution fine. (Willie, supra, 133 Cal.App.4th at p. 47.) The minutes for the May 13, 2004 hearing described it as a hearing on the claim of exemption. (Willie, supra, 133 Cal.App.4th at p. 47.) The hearing on the writ of execution was continued to June 17, 2004. (Ibid.)

On June 16, 2004, the judge who originally sentenced defendant granted the district attorneys May 11, 2004 motion to release defendants money from the police department to the VCB for payment of the restitution fine. (Willie, supra, 133 Cal.App.4th at p. 47.) The order was entered nunc pro tunc to the 2001 sentencing date. (Ibid.)

At the scheduled June 17, 2004 hearing on the writ of execution before a second judge, the parties agreed the matter had been resolved and there was nothing for the second judge to do on the writ of execution. (Willie, supra, 133 Cal.App.4th at p. 47.)

People v. Willie

Defendant appealed the June 16, 2004 order releasing his money to the VCB for payment of the restitution fine. (Willie, supra, 133 Cal.App.4th at p. 47.) We concluded the sentencing judges order releasing the funds was unauthorized and had to be set aside. However, we also concluded that defendants money in excess of the statutorily-imposed $300 exemption was available for payment of the restitution fine. (Id. at pp. 46, 48-49.) We reversed the June 16, 2004 order and remanded the matter for proceedings to enforce the restitution fine as a money judgment. (Id. at pp. 52, 53.)

We did not decide which particular government entity qualified as the judgment creditor entitled to enforce the restitution fine. (Willie, supra, 133 Cal.App.4th at p. 52, fn. 9.) We noted that the VCB is given statutory authority to enforce the unpaid portion of a restitution fine but only after a defendant ordered to pay the fine is released from incarceration and is no longer on probation or parole. (Ibid.) Because defendant was currently in prison, we observed that enforcement by the [VCB] seems to be premature. (Ibid.)

Post-Willie Proceedings

After the remittitur issued, the trial court appointed the public defender to assist defendant with a restitution issue that had been before the trial court in 2004 and had been referred to as a claim of exemption.

1. February 6, 2006 Hearing

At a February 6, 2006 restitution hearing the deputy public defender, Karen Thompson, objected to the district attorneys involvement in the matter. The deputy district attorney implied that a declaration from the State Controllers office was necessary to give the district attorney standing to participate in the proceedings, and Thompson requested such a declaration. She stated that one issue to be addressed was the location of the money subject to execution, and a second issue was defendants claim of exemption. Thompson stated that it was necessary for defendant to file a responsive pleading to the VCBs March 11, 2004 opposition to his claim of exemption. The court and parties agreed that defendants responsive pleading would be filed by February 27, 2006, and that a hearing on the claim would be held on March 13, 2006.

2. February 27, 2006 Responsive Pleading

The introduction to defendants February 27, 2006 responsive pleading was captioned Opposition to Motion to Enforce Levy. Its introduction stated that the VCB obtained a writ of execution to collect confiscated money; defendant filed a claim of exemption from the writ of execution; the VCB filed an opposition to his claim along with a written motion to enforce levy; and the instant pleading was his reply to the VCBs motion, setting forth [that] the money is exempt from levy of judgement [sic] [per] the writ of execution[,] and requesting the money be returned to him.

The pleading stated that the police department released defendants money to the VCB pursuant to the trial courts June 16, 2004 order. However, it continued, as a consequence of Willies reversal of that June 16, 2004 order, there was no valid standing order for his money to be released to the VCB, although it was currently in the VCBs possession.

Defendant argued his confiscated money was exempt from a writ of execution because it was payment for an automobile injury settlement, it was to be used for his health care resulting from the automobile accident, and personal injury settlement monies are statutorily exempt from satisfying a judgment.^[2]

Defendant argued the money should be returned to him because (a) the VCBs request for enforcement was premature, as he was still in prison, and (b) property that is described by statute as exempt without making a claim is not subject to any procedure for enforcement of a money judgment, and, if levied on, it may be released pursuant to the procedure for claim of exemption. (Code Civ. Proc.,  695.040, 703.510-703.610.) Defendant further argued that the VCB should return the money to him because the police department had already turned the money over to the VCB; that money was the money the VCB had sought to levy via a writ of execution in March 2004; but that money could not be levied on by writ of execution because it was a personal injury settlement and exempt without claim.

3. April 14, 2006 Hearing

The exemption claim hearing that had been scheduled on February 6, 2006 for March 13, 2006 was continued to April 7, 2006. The record on appeal contains no minutes for April 7, 2006.

Defendant, Deputy Public Defender Thompson, and a deputy district attorney appeared at an April 14, 2006 hearing. Neither the parties nor the court articulated a specific characterization of the hearing, which was captioned in the minutes only as further proceedings. Nothing in the appellate record indicates that the State Controller had filed a declaration that would grant standing to the district attorney, as discussed at the February 6, 2006 hearing.

After the court ascertained that Thompson had read Willie, the following colloquy occurred:

THE COURT: [T]he difficulty here is that the process of the levy on [defendants] monies was apparently shortcut by this courts determination that a court order was appropriate so that the [monies] could be released to the [VCB]. And while the Court of Appeal went through a number of process descriptions, ultimately its this courts understanding that what was missing is the process properly sought by the People under a levy and attachment, and further, that [defendant] would have the right to an exemption of up to $300 from any orders of disposition of his funds. [The] remaining funds would be subject to levy and attachment based on the restitution fine that this court imposed. []  Is there anything further you [Thompson] would wish to argue on behalf of [defendant]? And let me hasten to add that this court is not in a position this morning to make a rule or have a hearing on [the] issue, that is the issue of whether or not the motion is properly filed, because the court has not yet received that motion from the People. But just simply to indicate that upon the filing of that motion[,] jurisdiction over those funds subject to that $300 exemption would then reside with this or any other court here in the local jurisdiction where the motion would be filed. [] So, anything you wish to say in response to that[,] Ms. Thompson[,] on behalf of [defendant]?

[THOMPSON]: . . . [H]as the Court reviewed the [February 27, 2006] filing on behalf of [defendant] that our office prepared?

THE COURT: Yes.

[THOMPSON]: And [defendant] . . . maintains that he needs and is entitled to use funds . . . because of the source of the funds which were an insurance settlement and also because he needs those funds for his continued medical care and he needs those funds[,] he believes[,] for his . . . continuing legal expenses. I believe he wishes to address that issue as well.

THE COURT: Well thats denied. And all of [defendants] requests are denied at this point. But based on the remittitur this court is not disqualified . . . and can be a proper place for a motion by the People for the levy of those funds on behalf of the [VCB], and subject again as I say to [defendants] $300 exemption. And when and if the People move forward with that, we can have a hearing on that issue. . . . But at this point that is the courts ruling and orders.

[THOMPSON]: . . . I believe the funds have already been released [to the VCB] and, [] we do not have any way at this point to recover any of [defendants] funds. And I dont know what jurisdiction the court has over the [VCB] to order to have them to return any funds that [it has] taken in excess of what the court is finding.

THE COURT: I dont know what power I have either, except that the Court of Appeal has reversed the determination. And again, as I understand [its] ruling, except for $300[,] all the rest of the funds are subject to that levy and subject to any motion by the People and the [VCB]. So, as soon as that is presented, that could be heard, and any further claim for exemption can be presented on behalf of [defendant]. Thats [] procedurally where we are at this point.

The minutes for April 14 state: Court finds [defendant is] exempt of up to $300.

DISCUSSION

I. Nonappealable Order

Defendants notice of appeal states it is from what he denominates a claim of exemption. He acknowledges his appeal is awkward because the court basically did nothing. He contends the court should have ordered his money returned to him until such time, if ever, the VCB or some other entity properly enforces the restitution fine order and prevails against his claim that the entire sum of money is exempt.

As we outlined in Willie, the mandatory method for enforcing a restitution fine is the method for enforcing money judgments generally, and money judgments are generally enforced via a writ of execution and notice of levy on the person in control of the tangible property to be used to satisfy the judgment. (Willie, supra, 133 Cal.App.4th at pp. 49-50.) Once the property has been levied upon, claims of exemption may be made. (Code Civ. Proc.,  703.510 et seq.) Orders made in conjunction with the procedure for claiming exemptions after a levy are appealable. (Code Civ. Proc.,  703.600.)

Here, no enforcement proceedings are pending. The writ of execution/notice of levy proceedings that were initiated sometime before February 2004 were withdrawn in June 2004 after the trial court ordered (erroneously, as we subsequently held) the police department to release defendants money to the VCB. As the trial court here recognized, until the writ of execution proceedings are renewed, there is no ripe issue concerning statutorily-permitted exemptions.

To the extent defendant now argues the court should have ordered his money returned until such time as a writ of execution was ordered, he did not make such an independent request or motion. His February 27, 2006 pleading and the comments of his attorney at the April 14, 2006 hearing refer to his entitlement to have the money returned. However, these arguments were made in the context of his response to the VCBs 2004 opposition to his claim of exemption and motion to enforce levy.

Defendants money was apparently seized during a search incident to his arrest. (Willie, supra, 133 Cal.App.4th at p. 46, fn. 1.) Criminal defendants may bring a nonstatutory motion for return of property seized incident to arrest that was not introduced into evidence but remained in possession of the seizing officer. (People v. LaMonte (1997) 53 Cal.App.4th 544, 549, 551; see also People v. Superior Court (1972) 28 Cal.App.3d 600, 607-608: court has power to entertain motion for return of seized items under its inherent power to control and prevent the abuse of its process. ) The remedy for the denial of such a motion and refusal to return the property is discretionary review by writ of mandate in the appellate court, not an appeal. (28 Cal.App.3d at p. 610; People v. Gershenhorn (1964) 225 Cal.App.2d 122, 126.) Even construing defendants February 27, 2006 responsive pleading as a nonstatutory motion for return of his money, and the courts April 14, 2006 denial of all his requests at this point to encompass a denial of that motion, the courts April 14, 2006 ruling does not constitute an appealable order.

II. Nonappealable Order as Petition for Writ of Mandate

Defendant urges that even if there is no appealable order, we should consider his appeal as a petition for writ of mandate and order the VCB to return his money. Appellate courts have power to treat a nonappealable order as a petition for writ of mandate, but they exercise that power only under unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) Such circumstances are not present here.

In Willie, we remanded for proceedings to enforce the restitution fine as a money judgment. (Willie, supra, 133 Cal.App.4th at p. 43.) In so doing, we contemplated that the proceedings would commence shortly after the remittitur issued. The remittitur issued on December 5, 2005. At the February 6, 2006 hearing the parties scheduled a hearing in March 2006 on the issue of whether defendants money was exempt from execution, which necessarily implied that the parties anticipated the existence of viable enforcement proceedings by that date. For unknown reasons (although inferentially related to defendants efforts to disqualify the trial judge), the March 2006 hearing did not occur. As of April 14, 2006, enforcement proceedings had not yet been instituted, but the trial court clearly made its ruling expecting that their commencement was imminent and that the proceedings would provide defendant the opportunity to present evidence as to why the money was exempt. Nothing on this record intimates a danger of the moneys confiscation before a determination can be made regarding permissible exemptions, nor has defendant, who is currently incarcerated, demonstrated he will suffer irreparable harm even if all the money is in fact deemed exempt, but is not returned prior to that determination. To treat this purported appeal as a writ of mandate under these circumstances would unnecessarily prolong and complicate the proceedings contemplated by our disposition in Willie.

DISPOSITION

The appeal from the April 14, 2004 ruling is dismissed.

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Jones, P.J.

We concur:

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Simons, J.

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Gemello, J.

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^[1]The nature and facts of defendants offenses are not at issue in this appeal.

^[2]Code of Civil Procedure section 704.140 states, in pertinent part: (a) . . . [A] cause of action for personal injury is exempt [from levy] without making a claim. (b) . . . [A]n award of damages or a settlement arising out of personal injury is exempt to the extent necessary for the support of the judgment debtor. . . .