P. v. Soriano
Filed 8/19/08 P. v. Soriano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ENRIQUE SORIANO, Defendant and Appellant. | E044488 (Super.Ct.No. FMB700229) OPINION |
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Reversed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Plaintiff and Respondent.
Defendant Richard Enrique Soriano pled guilty to possession of marijuana for sale (Health & Saf. Code, 11359) pursuant to a plea agreement, and a trial court sentenced him to the midterm of two years in state prison. At the time of the plea and sentence, defense counsel informed the court that defendant intended to bring a motion for return of his property that the police seized (the motion), and that defendant would waive his appearance at that hearing. Defense counsel subsequently brought the motion, and the court denied it. On appeal, defendant argues that the court improperly denied the motion. The People correctly concede. We reverse.
PRODERURAL BACKGROUND
On October 4, 2007, defendant made an oral motion for return of certain property that the police had seized. The motion was accompanied by a proposed order identifying the property sought to be returned, which included the following items: 1) Photographs and gang paraphernalia including Pack of pictures in name of Richie Soriano black day planner; 2) Hand-drawn picture with words Gangsters and Hazard; 3) Several photographs; and 4) Various documents and photographs. There is no indication in the record that the actual property was before the court and no indication in the record why the police had seized and/or retained the property. Defense counsel made no argument on the record, and the People simply submitted. After naming the items listed, the court stated: And the court will also note that under Penal Code Section 186.21,[1]that in discussing [the] Street Terrorism Enforcement Prevention Act, although it was not charged in this crime, but it deals with the items that deal with the Street Terrorism Enforcement Prevention Act. The Legislature finds an effective means of punishing and deterring the criminal activity of street gangs is through forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by street gangs. So the court is not inclined to grant the return of the requested property. Thus, the court denied the motion.
Defendant filed a notice of appeal. In an order filed January 9, 2008, this court noted that the denial of a motion for the return of property is usually challenged by way of a petition of writ of mandate. However, this court construed the trial courts order for forfeiture of property as affecting a substantial right which was the subject of a criminal action. Thus, we ruled that defendant could proceed by way of an appeal.
ANALYSIS
The Trial Court Improperly Denied the Motion
Defendant argues, and the People concede, that the courts order denying the return of his property should be reversed, since it was improperly based on section 186.21. We agree.
The Legislature enacted the California Street Terrorism Enforcement and Prevention Act (STEP Act), for the purpose of recognizing that it is the right of every person . . . to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals. . . . ( 186.21; People v. Moore (2004) 118 Cal.App.4th 74, 78-79.) Section 186.21 simply contains legislative findings and declarations concerning street gangs. The last sentence of section 186.21 states: The Legislature further finds that an effective means of punishing and deterring the criminal activities of street gangs is through forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by street gangs.
The trial court in the instant case relied upon the last sentence in section 186.21 to support its denial of defendants motion for return of property. As pointed out by the People, that provision only expresses a legislative finding that an effective means of punishing the criminal activities of street gangs is through forfeiture of certain property. However, section 186.21 is not an actual forfeiture provision. In fact, as the People point out, the Legislature apparently failed to enact an actual forfeiture provision to carry out this legislative finding.
In addition, the prosecution presented no evidence to explain how or why the items at issue were instrumentalities acquired, accumulated, or used by street gangs. ( 186.21.) The property itself was not before the court and was not identified except in defendants proposed return order. Moreover, the instant case did not involve any gang allegations. Defendant pled guilty to possession of marijuana for sale. (Health & Saf. Code, 11359.)
In sum, the trial court improperly denied defendants motion to return property since the STEP Act does not make any provision for the actual forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by street gangs. ( 186.21.)
DISPOSITION
The order is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
GAUT
J.
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[1] All further statutory references will be to the Penal Code, unless otherwise noted.
