Spray v. Super. Ct.

Filed 11/28/07 Spray v. Super. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Daniel T. Brice, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Petition granted.

Joseph D. Elford for Petitioner.

No appearance by Respondent.

Tony Rackauckas, District Attorney, and Stephan L. Sauer, Deputy District Attorney, for Real Party in Interest.

Petitioner James Spray is qualified to use marijuana for medical purposes under Californias Compassionate Use Act (CUA). (Health & Saf. Code,  11362.5.) Because of this, he was not prosecuted for any drug offenses after the police found marijuana in his residence. However, the police kept the marijuana, and the trial court denied Sprays request for its return. We find Spray is entitled to the return of his marijuana and therefore grant his petition for relief.

* * *

On November 30, 2005, Huntington Beach police went to Sprays residence in response to an erroneous 911 call. The circumstances regarding the call are not disclosed in the record, but it appears someone called the police from Sprays residence and then hung up. Officers responded, and, while there, found and seized approximately five ounces of marijuana, twelve immature marijuana plants, and sundry equipment used for cultivating marijuana.

Spray moved to have the seized items returned to him on the basis he is a qualified patient under the CUA. As part of the motion, he included a Physicians Statement from Dr. Robert Sullivan dated July 18, 2005. The statement says Spray has a serious medical condition which may benefit from the use of medical cannabis. And it contains Sullivans approval for Spray to use cannabis as medicine. The statement also contains Sprays acknowledgment that cannabis remains illegal under federal law.

The People opposed the motion for two reasons. First, [Sprays] marijuana and [the] items used to cultivate marijuana [are] the subject of an on-going criminal investigation. And second, despite the CUA, medical marijuana is still illegal contraband under federal law . . . . The motion hearing was not transcribed, but the parties are in agreement the court denied the motion for return of property and, after Mr. Spray inquired of the grounds, the court stated that it did not believe that it was appropriate to release this type of property and that Mr. Spray [] was free to take the matter up with the appellate court.

Spray has done so, asking in his petition that we overturn the trial courts order. In his return, the district attorney, representing the People as real party in interest, admits his office has decided not to file any charges relating to [Sprays] possession of the marijuana and marijuana plants which were the subject of [his] motion for return of property . . . . The record shows this decision was based on the responsible deputy district attorneys determination there was insufficient evidence to prosecute Spray in light of his defense under the CUA. Nevertheless, the district attorney still opposes Sprays writ petition on the basis it is unlawful for Spray to possess marijuana under federal law.

I

As a preliminary matter, the district attorney asserts that because his office is no longer prosecuting Spray, it would not be directly affected if the court ordered the return of Sprays marijuana. The district attorney believes such an order would, however, directly affect the Huntington Beach Police Department (HBPD), given it has physical custody of the marijuana. This, the district attorney claims, makes [the HBPD] a real party in interest [that] should have been identified and served with the petition.

When, as here, the petition names a court as the respondent, it must disclose the name of any real party in interest. (Cal. Rules of Court, rule 8.490(b)(2).) Real party in interest has been generally defined as any person or entity whose interest will be directly affected by the proceeding . . . . [Citation.] While the real party in interest is usually the other party to the lawsuit or proceeding being challenged [citation], it may be the person or entity in whose favor the acts complained of operates [sic] or anyone having a direct interest in the result [citation], or the real adverse party . . . in whose favor the act complained of has been done. [Citations.] (Sonoma County Nuclear Free Zone 86 v. Superior Court (1987) 189 Cal.App.3d 167, 173.)

Addressing the issue of the HBPDs interest in this case, Spray points out he did in fact serve his writ petition on the city attorney for Huntington Beach, albeit some seven weeks after he filed it in this court. And, in the trial court, he served Huntington Beachs chief of police with his motion for return of property. Despite this, neither the City of Huntington Beach nor the HBPD have ever appeared or attempted to intervene in these proceedings. Spray takes this to mean the HBPD is not an interested party, and we are inclined to agree. Even though the HBPD has known about this case for over nine months, it has never asserted an interest in its outcome.

Actually, that is not surprising because, as we explained in the companion case of Garden Grove v. Superior Court (Kha) (Nov. 28, 2007, G036250) __ Cal.App.4th __, a police departments role with respect to seized property is largely one of custodian for the court. And although marijuana possession is prohibited under federal law, police officers are immune from the federal drug laws when, in the course of their official duties, they restore marijuana to people who are qualified to use it under state law. (Id. at p. __.) For these reasons, we find the HBPD does not have a sufficient interest in the outcome of this case to make it a real party in interest. We therefore turn to the merits.

II

In opposing the return of Sprays marijuana, the district attorney relies primarily on federal law and federal supremacy principles. He contends, Even though [Sprays] possession of marijuana is lawful under California law, he is not entitled to its return because it is still contraband under federal law and his possession of it would violate federal law. For reasons explained in Garden Grove v. Superior Court (Kha), supra, we disagree. Federal law does not preclude the return of a qualified patients medical marijuana after criminal proceedings have been terminated in his favor. In fact, due process and principles of fundamental fairness dictate that the patients marijuana be returned to him in that situation. (Id. at p. __.) These concepts likewise mandate the return of a patients marijuana when, as here, he is not charged with a crime in the first place. Because Spray is a qualified user under the CUA and was not charged in connection with this case, we conclude he is legally entitled to the return of his marijuana.

As a procedural matter, the district attorney argues we should remand the case to the trial court to determine whether, in light of his decision to forego prosecution, Spray should get his marijuana back. However, the record shows the decision not to prosecute Spray was based on the prosecutions determination Spray was entitled to possess the subject marijuana pursuant to the CUA. We conclude that under those circumstances, Spray is entitled to his marijuana as a matter of law. Therefore, it would serve no purpose to remand the matter for further proceedings.

DISPOSITION

Sprays petition is granted. The trial court is directed to vacate its order denying Sprays motion for return of property and make a new order granting the motion.

BEDSWORTH, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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