Williams v. Superior Court

Filed 3/24/06 Williams v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after superior court denied motion for return of property. Herbert J. Exarhos, Judge. Petition granted.

In this petition for writ of mandate, we review the trial court's denial of a motion to return property, specifically weapons. (Pen. Code, § 12028.)^[1] Because the underlying facts are undisputed, our task is to independently review the application of the statutory language to those undisputed facts. We determine the trial court erred in applying the law to this factual situation and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On March 5, 2001 Charles Andrew Williams (Andy), the 15-year-old son of the petitioner, Charles Jeffrey Williams (Williams), obtained the key to his father's gun cabinet, unlocked the cabinet, and removed a revolver and ammunition. Andy then used that revolver to commit two murders and injure 13 other people at Santana High School. Later that day the San Diego County Sheriff's Department executed a valid search warrant and seized personal property from the home Andy shared with his father. Property seized from the gun cabinet in the home included: weapons, consisting of .22 caliber lever action single shot rifle, .243 caliber action rifle, .410 gauge single shot shotgun, .20 gauge bolt action shotgun, .20 gauge pump action shotgun, CO2 pellet revolver, .177 caliber BB/pellet gun, and an M-16 military bayonet; 2 ammunition boxes containing cleaning kits for weapons; a brown-boxed cleaning kit for shotguns; and hunting clothes.

On August 22, 2003, Williams brought a motion for the return of that seized property. On October 3, 2003, the court granted the motion as to the ammunition boxes and cleaning kits. The court then denied the motion for all other items, and ordered the weapons destroyed. Destruction was stayed pending the appeal of Andy's underlying criminal case.

On November 5, 2003, Williams filed his first petition for writ of prohibition in this court. The People filed an opposition on December 5, 2003. We denied the petition as premature on December 16, 2003, because Andy's underlying criminal action was not yet final.

In April 2004 Andy's petition for review of his criminal conviction was denied by the California Supreme Court. This finalized Andy's underlying criminal action, making Williams's petition no longer premature.

On February 25, 2005, Williams filed his second petition for writ of prohibition in this court. On March 23, 2005, we denied the petition, without prejudice to renewing the motion to establish ownership of the property in question.

On May 25, 2005, Williams renewed his motion for return of the seized property. To establish ownership, Williams provided a declaration from his own father, Charles A. Williams (Charles), stating that Williams owned all of the weapons seized except for the "Western field shotgun" which Charles owned. The People filed a response on June 10, 2005, submitting that, "with the exception of the Western field shotgun, the firearms should be returned to Mr. Charles Jeffrey Williams subject to the requirements set forth in Penal Code section 12021.3. The Western field shotgun may be returned to declarant, Charles A. Williams, subject to the same requirements."^[2]

At the June 17, 2005 hearing on the renewed motion, the court determined Williams owned all of the weapons except the Western field .20 gauge pump action shotgun, which Charles owns. The court ruled that Charles could obtain the return of his shotgun, but Williams could not obtain the other weapons. In denying the return of the weapons to Williams, the trial court relied on the reasoning of its previous order of October 2003, in which it denied return of the weapons after finding them to be "instruments of the crime," declaring them to be nuisances, and ordering their destruction. The court never mentioned any of the requirements of section 12021.3. The minute order provides only that: "The Westerfield [sic] .20 gauge shotgun may be released to the grandfather after his complete name and date of birth are provided to the court. Motion for return of property as to the remaining firearms is denied and the court adopts its previous order of 10-3-03."

On September 14, 2005, Williams filed the subject petition for writ of prohibition, his third. Williams asserts there was no basis for the October 3, 2003 ruling, which declared the weapons a nuisance and was adopted by the court in the June 17, 2005 hearing. Williams relies on section 12028, which outlines the requirements under which a weapon becomes a nuisance. (§ 12028, subd. (b)(1).) Williams argues the trial court had no sufficient basis to find the subject weapons were used in the commission of a crime, as required by section 12028, subdivision (b)(1). Williams also argues that the rightful owners of the weapons were not convicted of a crime as generally required by section 12028.^[3] Williams urges us to order the return of all the weapons to their rightful owners.

On October 21, 2005, the People filed an informal response in opposition. The People correctly clarify that the instant petition is one for writ of mandate, not for prohibition. (See People v. Beck (1994) 25 Cal.App.4th 1095, 1103 (Beck).) The People assert the trial court was in the best position to determine the issue of whether the weapons were used in the commission of the crime, and thus whether section 12028 applies. The People argue that we must analyze that determination under the abuse of discretion standard. The People do not mention section 12021.3 in this response.^[4]

On October 25, 2005, we issued an order to show cause (OSC) why the relief requested should not be granted. Absent a response from either party, we deemed the briefs on file to be the response to the OSC on November 2, 2005. The parties waived oral argument.

DISCUSSION

A. Issue Presented

The issue on this petition is twofold: whether the weapons were "used in the commission of" the crime, and thus whether section 12028, subdivision (b)(1) becomes applicable. That section states in pertinent part: "[A] firearm of any nature . . . used in the commission of . . . any felony, . . . is, upon a conviction of the defendant . . . a nuisance." (§ 12028, subd. (b)(1).) Such nuisances are subject to destruction. (§ 12028, subd. (d).)

B. Standard of Review

Matters presenting pure questions of law, not involving the resolution of disputed facts, are subject to the appellate court's independent review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) As this court held in Warburton/Buttner v. Superior Court (Tunica-Biloxi Tribe) (2002) 103 Cal.App.4th 1170, 1181, involving a petition for writ of mandate, "If an appellate court is presented with a case in which the facts most relevant to the appeal are undisputed, it may resolve the question of law presented without regard to the findings of the trial court. [Citation]." Likewise, the application of law to undisputed facts is subject to the appellate court's independent review. (Crocker National Bank v. City & County of San Francisco (1989) 49 Cal.3d 881; see also Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 8:114, p. 8-62.1 (rev. #1, 2005).) For example, in Crocker, the court held that the statutory classification of an item as a "fixture" was a question of law subject to independent appellate determination. (Crocker, supra, at p. 888.)

Here we are confronted with a similar question: the statutory classification of the subject weapons as "nuisances." Because this issue involves the trial court's application of law, specifically section 12028, to undisputed facts, we independently review the record to determine if the law was properly applied. Our task is to determine whether the presented facts meet the statutory criteria of section 12028.

C. The Trial Court Misapplied the Law to the Undisputed Facts

The People correctly assert that in this case, the trial court was in the best position to determine the factual question of whether the subject weapons were used in the commission of the crime. In support of its October 2003 decision denying Williams's original motion for return of the seized property, the court made the following statement: "The fact that these specific weapons were not actually used in the commission of the crime detracts little from the fact that they were available because of your failures, Mr. Williams." (Italics added.) This clearly established fact, that the weapons were not used in the commission of the crime, on its face precludes the application of section 12028.

Notwithstanding this factual finding, the People now assert that the trial court found the weapons were used in the commission of the crime. However they fail to indicate any tenable basis for that assertion. Faced with such a clear statement in the record, we are not amenable to such an assertion here. Moreover, this factual finding is supported by substantial evidence and there is nothing in the record to controvert it.

The court continued its comments at the October 2003 hearing: "And although these weapons perhaps at best were peripherally involved in the crime, they were nevertheless available, and as such I find that they were instruments of the crime, and I therefore, declare them to be nuisances and order their destruction." (Italics added.)

Comparing the trial court's overall factual findings to the requirements of section 12028, subdivision (b)(1), it is clear that they are insufficient for the purposes of applying this statute. The key analysis under this subdivision is not whether, as the trial court stated, the weapons were "peripherally involved in," or even "instruments of" the crime. The statutory language of section 12028 is very clear in explicitly requiring a factual finding that a weapon was "used in the commission of" the crime, for which the defendant is convicted, in order to become a nuisance.

On this point, we find strong support in the analysis of section 12028 in Beck, supra, 25 Cal.App.4th 1095. In Beck, the defendant pled guilty to cultivation of marijuana. The trial court found that the firearms seized from the defendant's home were used in the commission of the crime and ordered them to be confiscated and destroyed under section 12028, without granting defendant a hearing on that issue. On appeal, this was held to be error, and such confiscation and destruction, without a hearing to determine whether the weapons were in fact used in the commission of a crime, would be an unconstitutional deprivation of property without due process of law. "The confiscation and destruction, as a 'nuisance,' of guns 'used in the commission of any' misdemeanor, felony, or attempted misdemeanor or felony, is, self-evidently, dependent upon some manner of determining that the guns were 'used in the commission of' a crime." (Beck, supra at p. 1101.)

Here, we have an analogous situation because during the required hearing in October 2003, the trial court found the subject weapons were not used in the commission of the crime. Nevertheless, it ordered the destruction of the weapons under section 12028. The lack of a hearing in Beck, supra, 25 Cal.App.4th 1095, precluded any possible finding that the weapons were used in the commission of the crime, thus section 12028 could not apply. Here, the trial court's explicit finding that the weapons were not used in the commission of the crime likewise precludes the application of section 12028.

In an effort to clarify the operation of section 12028 and to provide guidance for its application in future situations, we now address how the issue of ownership relates to the application of section 12028.

Once the trial court found the subject weapons were not used in the commission of the crime, as it did during the October 2003 hearing, it could not order their destruction under section 12028. Each of the subject weapons was left in and then seized from the same gun cabinet and thus each shared the same factual status of not being used in the commission of the crime. That finding placed the court in the position of being required to return all of the subject weapons to their lawful owners.

Thus, ownership became relevant in determining who could obtain return of the weapons, but in this case it is not relevant to determining whether the weapons could be returned. That is why, on March 23, 2005, we denied Williams's second petition, without prejudice to renewing the motion to establish ownership of the weapons.

At the current trial court hearing in June 2005, the People agreed the weapons should be returned to their respective owners, Charles or Williams. After expressing some uncertainty as to why it should determine the issue of ownership, the trial court determined the respective owner of each of the subject weapons in the June 2005 hearing. The trial court then ordered that Charles could obtain the return of his weapon, yet it denied return of the other weapons to their owner, Williams.

In making its ruling, the trial court failed to make the requisite finding under section 12028, regarding use. Instead, the trial court made an express finding of fact that is directly opposed to the requirements of section 12028. In the face of that finding, the court incorrectly concluded that section 12028 applied and that the weapons were nuisances. Because the statutory criteria of section 12028 were not met by the undisputed facts presented here, it was improper to apply that law.

D. The Trial Court Abused Its Discretion in Declaring the Weapons a Nuisance

Even if this matter is viewed as purely discretionary, as the People urge, the trial court's declaration of the weapons as a nuisance is not supported by the record, nor is it supported by section 12028. As previously discussed, the record contains an uncontroverted factual finding that the subject weapons were not used in the commission of the crime, thus the record fails to support any exercise of discretion to declare the weapons were nuisances. Indeed, there is nothing in section 12028 which allows a court to "declare" that a weapon is a nuisance. Thus, the trial court's declaration fell outside the power vested in it under section 12028.

Moreover, the trial court's action in ordering the return of only one owner's weapon was an abuse of discretion, because doing so was clearly erroneous in light of the previous finding that none of the weapons was used in the commission of the crime. The record fails to support the trial court's June 2005 order to return only Charles's weapon but not Williams's weapons.

For the guidance of the trial court in further proceedings, we again note that the procedures of section 12021.3 are not properly invoked on this record due to the particular sequence of events here, dating back to Williams's original motion in 2003.

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate its order of June 17, 2005 (which adopted the same court's order of October 3, 2003) and enter an order consistent with this opinion, returning all of the remaining property to its respective owners: Williams and Charles. Neither party is awarded costs in these writ proceedings. (Cal. Rules of Court, rule 56(l).) The opinion will become final as to this court on the date of filing. (Cal. Rules of Court, rule 24(b)(3).)

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.

^[2] Section 12021.3 sets forth requirements that must be met before a court or a law enforcement agency, which has taken custody of any firearm, may return any firearm to any individual. Section 12021.3 became effective January 1, 2005, which was after the hearing on Williams's original motion, but before Williams's renewal of that motion. (Stats. 2004, c. 602, § 1.)

^[3] Section 12028 speaks of the "conviction of the defendant," and the record here fails to indicate that Williams was ever charged with a crime, let alone convicted of one.

^[4] We find section 12021.3, setting forth the administrative procedures for seeking the return of a firearm, inapplicable to the instant matter, which is essentially a continuation of Williams's original 2003 motion and petition. This section did not become operative until January 1, 2005, nothing in its text indicates any intent to apply it retroactively, it was not mentioned in the trial court's order, and the People's failure to raise the issue here impliedly waives any reliance on its provisions.