Filed 8/27/15 Bjorklund v. Dudley CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


ERIC BJORKLUND,                                                               2d Civil No. B260532
                                                                            (Super. Ct. No. 1467445)
     Plaintiff and Appellant,                                                (Santa Barbara County)

v.

JOYCE DUDLEY, as District Attorney,
etc., et al.,

     Defendants and Respondents.




                   George Foxx was found guilty of vandalizing Eric Bjorklund's vehicles and
ordered to make restitution. That same day, the Santa Barbara County District Attorney's
Office confiscated $25,720 in a drug raid involving Foxx, Kenneth Koster and two other
defendants. Claiming the funds were his, Koster agreed to forfeit them to the government
under Health and Safety Code section 11469 et seq.1 Bjorklund filed a petition for writ
of mandate against District Attorney Joyce Dudley, Assistant District Attorney Allison
Neuffer and the Santa Barbara County District Attorney's Office (collectively
"respondents") alleging his entitlement to the funds. (See Code Civ. Proc.,




          1 All statutory references are to the Health and Safety Code unless otherwise
stated.
§ 1085.) The trial court determined respondents had no duty to pay restitution from funds
forfeited by Koster since he was not a party to the vandalism case. It further concluded
the funds were exempt from restitution under section 11469. We affirm.
                            PROCEDURAL BACKGROUND
              Bjorklund, who is self-represented, claimed that he was entitled to recover
the restitution ordered in the vandalism case from funds confiscated in the drug case.
Respondents denied his claim, and based upon the agreement with Koster, the funds were
formally forfeited to the government. (See People v. Twenty Five Thousand Seven
Hundred Twenty Dollars ($25,720.00) (Super. Ct. Santa Barbara County, 2013, No.
1341766).) Bjorklund petitioned for a writ of mandate compelling respondents to turn
over the funds to him. The trial court sustained respondents' demurrer to the petition with
leave to amend.
              Bjorklund amended his petition. The trial court again sustained
respondents' demurrer, this time without leave to amend. Bjorklund appeals from the
judgment of dismissal.
                                      DISCUSSION
              Bjorklund contends the trial court erred by sustaining the demurrer without
leave to amend and dismissing his writ petition. We disagree.
              "The standard of review on appeal from a judgment of dismissal following
the sustaining of a demurrer to a petition for writ of mandate without leave to amend is
well established. We examine the pleading de novo to determine whether it alleges facts
sufficient to state a cause of action under any legal theory. [Citation.] We give the
pleading 'a reasonable interpretation and treat the demurrer as admitting all material facts
properly pleaded, but we do not assume the truth of contentions, deductions, or
conclusions of law.' [Citation.]" (Keffeler v. Partnership Healthplan of California
(2014) 224 Cal.App.4th 322, 335, fn. 10.)
              Bjorklund correctly asserts that restitution to victims of crimes is
constitutionally and statutorily mandated in California. (People v. Keichler (2005) 129
Cal.App.4th 1039, 1045; see Cal. Const., art. I, § 28; Pen. Code, § 1202.4.) The problem

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he faces, however, is two-fold. First, Penal Code section 1202.4, subdivision (f) states
that “in every case in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make restitution to the
victim or victims in an amount established by court order . . . ." (Italics added; see Pen.
Code, § 1202.4, subd. (a) [victim "shall receive restitution directly from a defendant
convicted of that crime"].) Here, Foxx -- not Koster -- is the defendant subject to the
restitution order, and the amended petition does not allege that Foxx owned the
confiscated funds. Bjorklund contends "[t]he paper trail" shows that respondents
"collected" the funds from Foxx, but the documents of which the trial court took judicial
notice confirm that only Koster claimed ownership of the funds. Neither Foxx nor the
other two defendants filed a claim. The forfeiture occurred only after Koster withdrew
his claim.
              Second, section 11469 governs forfeitures of controlled substances,
property, cash and other things of value used in the drug trade. (People v. Superior Court
(Plascencia) (2002) 103 Cal.App.4th 409, 418-419.) Penal Code section 1202.4,
subdivision (f) provides that "[t]he court may specify that funds confiscated at the time of
the defendant's arrest, except for funds confiscated pursuant to Section 11469 . . . , be
applied to the restitution order . . . ." (Italics added; see People v. Rosas (2010) 191
Cal.App.4th 107, 120, fn. 6.) Because the $25,720 was confiscated under section 11469,
it is exempt from application to the restitution order. (See Rosas, at p. 120, fn. 6.) This is
true even if, as Bjorklund claims, the funds were "collected" from Foxx. Thus, Bjorklund
has not shown, and cannot show, that he is entitled to any of the funds.
              Bjorklund maintains that Penal Code section 1202.4, subdivision (f) is
"unconstitutional to the extent the person from whom the funds were collected owes
restitution to a victim." He bases his argument on the Victims' Bill of Rights Act of
2008, also known as Marsy's Law, which amended California Constitution, article I,
section 28. Bjorklund is correct that if a conflict exists between a provision of the
California Constitution and a statutory provision, the Constitution trumps the statute.
(See Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 595;

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In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, 527.) But no such
conflict exists here.
              Marsy's Law created certain rights victims enjoy within the criminal justice
system, but it did not, as Bjorklund asserts, establish the constitutional right to victim
restitution. That right was created when Proposition 8 was enacted by the voters in 1982.
(People v. Birkett (1999) 21 Cal.4th 226, 230.) Marsy's Law merely reaffirmed a victim's
right to “seek and secure” restitution (see Cal. Const., art. I, § 28, subd. (b)(13)(A)). This
general affirmance of a victim's right to seek and secure restitution in no way conflicts
with the Legislature's implementation of victims' right to restitution through existing
statutory provisions. Accordingly, we reject Bjorklund's contention that Marsy's Law
overcomes the exemption in Penal Code section 1202.4, subdivision (j) for funds
confiscated under section 11469. We also reject his suggestion that the denial of his
petition somehow negates the restitution order. His inability to collect restitution from
the confiscated funds does not deprive him of his right to otherwise enforce the court
order.2
                                       DISPOSITION
              The judgment is affirmed. Respondents shall recover their costs on appeal.
              NOT TO BE PUBLISHED.


                                           PERREN, J.
We concur:

              GILBERT, P. J.


              YEGAN, J.




       2 Respondents alternatively contend the judgment must be affirmed because
Bjorklund's petition fails to state facts showing that he does not have a plain, speedy and
adequate remedy at law. (See Code Civ. Proc., § 1086; Barnard v. Municipal Court
(1956) 142 Cal.App.2d 324, 326.) Having concluded his petition fails to state a claim for
relief, we do not reach this argument.
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                                 Donna D. Geck, Judge

                        Superior Court County of Santa Barbara

                         ______________________________



             Eric Bjorklund, in pro. per., for Appellant.

             Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Senior Deputy,
for Respondents.




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