Opinion
C080258
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. $15,500 UNITED STATES CURRENCY et al., Defendants; RATTANA PHOMSOUVANH Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CI66649)
The People petitioned in 2012 for the civil forfeiture of defendants in rem $15,500 United States Currency (the currency) and a 2003 Blue Lexus SC430 Coupe, VIN No. JTHFN48Y930046281 (the Lexus). The People abandoned the action against the currency after a pretrial ruling that it was not subject to forfeiture. A jury returned a verdict in favor of the People against the Lexus in August 2015. The trial court entered judgment accordingly, ordering the return of the currency to defendant Rattana Phomsouvanh (Phomsouvanh) and the forfeiture of the Lexus. Phomsouvanh filed a notice of appeal in August 2015. The Attorney General stipulated to substituting the prosecutor's office as the representative of the People on appeal in November 2015. The case was fully briefed in October 2017.
A simple defect permeates these proceedings. The trial court concluded that the People are entitled, in seeking the forfeiture of a vehicle (one of a person's most important assets), to evade the procedural protections that the Legislature explicitly crafted and instead call the vehicle "equipment" and litigate their petition pursuant to a different provision of the statute that does not include such protections. We shall reverse and remand with directions to order the return of the Lexus. Our resolution moots the remainder of Phomsouvanh's contentions.
FACTUAL AND PROCEDURAL BACKGROUND
Given the purely legal issue that is determinative of this appeal, there is little in the record of any relevance. Phomsouvanh arranged to buy 10 to 15 pounds of marijuana from an undercover agent. When she arrived at the arranged meeting place in Red Bluff in May 2012, accompanied by Lance Stenhouse (the attorney who is presently representing her on appeal), the undercover agent detained them and searched the Lexus and their persons. The undercover agent found about $5,000 in Phomsouvanh's purse and $10,000 hidden in the trunk's spare tire compartment. The agent did not find any marijuana or marijuana paraphernalia in the search. He had not brought any marijuana with him. The agent seized the Lexus and the currency, and arrested Phomsouvanh and her companion. The People filed criminal charges against Phomsouvanh and her companion in May 2012. On motion of the People, Judge John J. Garaventa dismissed the charges in January 2014.
In June 2015, Judge Jonathan W. Skillman heard motions in limine in connection with the still pending forfeiture trial. He ruled that the currency was not subject to forfeiture, so the People were precluded from introducing evidence on the subject. As for the Lexus, the court interpreted the term "equipment" appearing in Health and Safety Code section 11470, subdivision (b) (hereafter section 11470(b)) as including vehicles, and therefore the People could present evidence that the Lexus was subject to forfeiture under that provision even though they did not satisfy a criterion otherwise specified for forfeiture of vehicles—a prior criminal conviction for an offense under which forfeiture is authorized (§§ 11470, subd. (e) (hereafter section 11470(e)), 11488.4, subd. (i) (hereafter section 11488.4(i))). The case proceeded to trial before Judge Matthew C. McGlynn; the parties do not indicate that they renewed the issue.
Undesignated statutory references are to the Health and Safety Code in effect at the time of the alleged crimes and forfeiture proceedings.
Section 11470(b) provides: "The following are subject to forfeiture: [¶] . . . [¶] (b) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this division."
The offense authorizing forfeiture on which the People relied in their petition was attempted possession of marijuana for sale (§ 11359); at trial they relied on attempted transportation of marijuana (§ 11360), which would not be an adequate basis under section 11470(e). The trial court thus instructed the jury that under section 11470(b), "[T]he People must prove that it is more likely [than not] that . . . the [Lexus] was . . . some kind of equipment . . . that was used or intended to be used . . . to . . . deliver, import[,] or export . . . marijuana . . . [and] that there was a violation of . . . section 11360 in that [Phomsouvanh] unlawfully attempted to transport marijuana . . . ." The prosecutor argued that the Lexus "is a kind of equipment that can be used to transport things." The jury voted 10 to two in favor of forfeiture. Phomsouvanh moved for a new trial and judgment notwithstanding the verdict. The trial court denied the motions in October 2015 without elaboration.
DISCUSSION
Phomsouvanh's argument turns on the interpretation of statutes, which is a question of law that we review de novo. (People v. Meyer (2010) 186 Cal.App.4th 1279, 1283.)
Section 11470(e) provides in pertinent part, "The interest of any registered owner of . . . any vehicle other than [one used exclusively in agriculture], which has been used as an instrument to facilitate the manufacture of, or possession for sale or sale of . . . 10 pounds dry weight or more of marijuana" is subject to forfeiture. This triggers section 11488.4(i), which in pertinent part provides, "(1) With respect to property described in [section 11470(e)] for which forfeiture is sought . . . , the [People] shall have the burden of proving beyond a reasonable doubt that the property . . . was used, or intended to be used, to facilitate a violation of one of the [enumerated] offenses . . . ," and "(3) In the case of [such] property . . . , a judgment of forfeiture requires as a condition precedent thereto, that a defendant be convicted in [a] . . . related criminal action of [a specified] offense . . . ."
Although not at issue in the present case, the forfeiture must be part of a bifurcated proceeding in the related criminal case. (§ 11488.4(i)(5); People v. $10,153.38 in United States Currency (2009) 179 Cal.App.4th 1520, 1526 ["the failure to try the forfeiture proceeding . . . in conjunction with the underlying criminal case . . . resulted in the trial court losing jurisdiction to enter an order of forfeiture"].)
In finding that a local forfeiture ordinance was preempted by the comprehensive state provisions for forfeiture that fully occupied the field, O'Connell v. City of Stockton (2007) 41 Cal.4th 1061 (O'Connell) noted, "State law . . . sets penalties for . . . unlawful possession and distribution [of controlled substances]. Among the available penalties is vehicle forfeiture but . . . only upon proof beyond a reasonable doubt," while the ordinance allowed this harsh penalty upon proof merely by a preponderance of the evidence (id. at p. 1071). It is the intent of the state "to reserve that severe penalty" for specified circumstances. (Id. at p. 1072.)
We note Phomsouvanh's citation of our decision in Hernandez v. City of Sacramento (Feb. 15, 2007, C047180), which involved a similar issue in Sacramento, is improper because it was depublished on grant of review and dismissed after O'Connell was issued. (O'Connell, supra, 41 Cal.4th 1061; see Hernandez v. City of Stockton, review granted May 9, 2007, S151356 , review dismissed, Nov. 14, 2007 .)
Section 11470(b), on the other hand, as set forth above provides that "All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this division" are subject to forfeiture. A subsequent catchall provision makes "All property except . . . any vehicle[,] which is used, or intended for use, as a container for property described in . . . (a) or (b) [above]" subject to forfeiture as well. (§ 11470, subd. (c).) Section 11488.4 does not prescribe any particular burden of proof for forfeiture in this context, and thus the preponderance standard applies. (Evid. Code, § 115; see People v. Nazem (1996) 51 Cal.App.4th 1225, 1232, fn. 7.)
It does not matter which principle of statutory interpretation we apply. Whether one calls the interpretation employed in this case an absurd result, or improper application of a general provision in derogation of a more specific one, or resulting in proscribed surplusage, it is clearly at odds with the plain language and structure of sections 11470 and 11488.4. It would be pointless for the Legislature to make all the special provisions for forfeiture of vehicles if we could construe vehicles to be included in "equipment" in section 11470(b). It is also contrary to the exclusion of vehicles from "containers" in subdivision (c) of the statute if vehicles were included in section 11470(b). In short, vehicle forfeitures must proceed under sections 11470(e) and 11488.4(i), which require (1) a prior criminal conviction for manufacturing, possessing for sale, or selling the specified controlled substances in the prescribed amounts, (2) the litigation of the forfeiture in connection with that criminal conviction, and (3) proof that the vehicle was used to facilitate the qualifying offense beyond a reasonable doubt. It is true that O'Connell did not expressly consider whether vehicles could be included within section 11470(b), but the decision did take pains to explain that it considered the vehicle forfeiture provisions "as a whole" even if this "ma[de] for tedious reading" because it was "central to a resolution of the preemption issue presented" (O'Connell, supra, 41 Cal.4th at p. 1069), and O'Connell did not at any point indicate that section 11470(b) was an alternative to proceeding under section 11470(e) (O'Connell, supra, at pp. 1069-1071).
California Assn. of Professional Scientists v. Brown (2013) 216 Cal.App.4th 421, 434.
People v. McRoberts (2009) 178 Cal.App.4th 1249, 1256.
The People's three-page argument to the contrary maintains the focus of the trial court on the plausibility of describing a vehicle as equipment, because the People "struggle[] to imagine" what type of equipment could be employed to deliver, import, or export controlled substances under section 11470(b) other than vehicles. Be that as it may, we must construe the statutory scheme as a whole. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1091.) Including vehicles within section 11470(b) does too much violence to the harmony of the structure as a whole (Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 544), whatever the meaning of equipment used to deliver, import, or export controlled substances.
The legal theory employed in the present case therefore contravenes the manifest meaning of the statutes on their face; we accordingly do not need to resort to legislative history to discern intent. (City of Brentwood v. Campbell (2015) 237 Cal.App.4th 488, 501.)
As a result, the judgment of forfeiture cannot stand, as it is structurally insufficient on procedural and evidentiary grounds. We accordingly will reverse with directions to dismiss the petition.
DISPOSITION
The judgment of forfeiture of the Lexus is reversed and the matter remanded with directions to dismiss the petition and return possession of the vehicle to its owner forthwith. Defendant and appellant Phomsouvanh shall recover her costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.