Hopkins v. Superior Cour t
Filed 10/17/08 Hopkins v. Superior Cour tCA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
ERIC EUGENE HOPKINS, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. | E046537 (Super.Ct.No. FWV800421) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Raymond P. Van Stockum, Judge. Petition granted.
Patrick J. Hennessey, Jr., for Petitioner.
No appearance for Respondent.
Michael A. Ramos, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and Paul W. Feldman, Deputy District Attorney, for Real Party in Interest.
In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
It is conceded that petitioners possession of the marijuana was legal under California law. The court in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, explained in detail why there would be no violation of federal law if a court authorized law enforcement to release seized medical marijuana to the owner. (Id. at pp. 383-391.) The reasoning appears sound.
The Peoples arguments to the effect that the matter is moot because the marijuana may have been destroyed or may have lost potency are entirely speculative and do not justify the order. Furthermore, as any delay in seeking relief can only have harmed petitioner (if in fact the marijuana has been destroyed or become degraded), we decline to deny relief on that basis.
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order denying petitioners motion for return of the property and to enter a new order authorizing or directing the custodial law enforcement agency to release the property to petitioner if it remains in existence.
The parties shall bear their own costs, if any.
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
GAUT
J.
MILLER
J.
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