Filed 12/9/14 P. v. Stiehl CA3
                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----




THE PEOPLE,                                                                                  C072805

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. SF11356,
                                                                                    SF12117, SF12361)
         v.

JOHN MELVIN STIEHL,

                   Defendant and Appellant.




         In October 2012, in case No. SF12117, defendant John Melvin Stiehl pleaded no
contest to failing to appear on his own recognizance. (Pen. Code, § 1320, subd. (b).) In
case No. SF12361, he pleaded no contest to possession of a controlled substance. (Health
& Saf. Code, § 11377, subd. (a).) In case No. SF11356, he pleaded no contest to
misdemeanor possession of ammunition (Pen. Code, § 12316, subd. (b)(1)) and admitted
a prior felony conviction.



                                                             1
       In December 2012, defendant was sentenced to local custody for terms of one year
four months in case No. SF12117, one year four months in case No. SF12361, and six
months in case No. SF11356. The terms were run concurrent to each other and to terms
imposed in Placer County cases. Several related counts were dismissed.
       Defendant filed notice of appeal in case Nos. SF12117 and SF12361. He filed a
misdemeanor notice of appeal in case No. SF11356 in the appellate division of the
Nevada County Superior Court. Because case No. SF11356 was then pending in the
superior court, not this court, we denied defendant’s application to construe his notice of
appeal as including that case without prejudice to a motion to transfer from the appellate
division to this court. The appellate division later transferred the case, which originally
had been filed as a felony, to this court. Because the transfer has been accomplished, we
now grant the application and construe the notice of appeal as including all three cases.
       On appeal, defendant contends the trial court erred by failing to order the return of
his motorcycle that was seized during a warrant search in case No. SF12361. We treat
the appeal as a petition for mandate and deny the petition.

                                           FACTS

                                   1. Case No. SF11356

       The facts are taken from defendant’s motion for return of property. On
September 15, 2011, Nevada County sheriff’s deputies served a search warrant at a
residence on Dog Bar Road. When the warrant was executed, defendant was located in
an outbuilding along with methamphetamine, a firearm, ammunition, and an ingestion
device. Sheriff’s deputies seized several vehicles that were suspected to have been
stolen, including a motorcycle.

                                   2. Case No. SF12117

       The facts are taken from defendant’s stipulation of factual basis for the plea.
Following execution of the search warrant, defendant was charged with, among other

                                              2
things, possession of a firearm by a felon. After having been released on his own
recognizance, defendant failed to appear in court on February 24, 2012.

                                   3. Case No. SF12361

       The facts are taken from the sheriff’s incident report. In December 2011, Nevada
County sheriff’s deputies returned to the Dog Bar Road property to serve an arrest
warrant on Barbara Boyle, the girlfriend of defendant, and to conduct a parole search of
defendant. Inside a van, deputies found methamphetamine, hypodermic syringes, used
methamphetamine pipes, and a digital scale with white residue. Several stolen vehicles
and vehicle parts were located on the property.

                                        DISCUSSION

                                             I

                    Denial of Defendant’s Motion to Return Property

       Defendant contends his appeal is from a final judgment imposing a sentence and is
authorized by Penal Code section 1237, subdivision (a). He also claims his appeal is
from an order denying the return of property and is appealable pursuant to Penal Code
section 1538.5, subdivision (m). We conclude the appeal must be dismissed.
       Penal Code section 1237 provides that “[a]n appeal may be taken by the
defendant: [¶]. . .[¶] (b) From any order made after judgment, affecting the substantial
rights of the party.” This provision does not extend “to the return of property not
admitted in evidence but remaining in the custody of the police,” because the motion “is
not directed to the criminal action resulting in defendant’s conviction; and the order
therein could not have affected any substantial right subject to that action.” (People v.
Tuttle (1966) 242 Cal.App.2d 883, 885.) The motorcycle is not within the scope of Penal
Code section 1237 because it was not admitted in evidence in any of the three superior
court cases.



                                             3
       Penal Code section 1538.5, subdivision (m) allows for appellate review following
a guilty plea of the denial of a motion for the return of property where “the property or
thing has been offered or will be offered as evidence against him or her.” But denial of a
motion for return of property unrelated to a defendant’s criminal proceedings is not
appealable. (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 124-126; see Ensoniq
Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1546 (Ensoniq).)
       The defendant is not without a remedy; the matter may be reviewed by petition for
writ of mandate. (People v. Gershenhorn, supra, 225 Cal.App.2d at p. 126.) Defendant
asks that we treat the appeal as a writ petition if we conclude the order denying return of
property is not appealable. (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.)
We will do so.

                                             II

                                Disposal of the Motorcycle

       Defendant contends the trial court erred by failing to order the return of his
motorcycle that was seized during the warrant search of the Dog Bar Road property. He
reasons that Vehicle Code section 10751 did not authorize the destruction of the
motorcycle without notice to defendant as the party in possession and a hearing on the
issue. (Further statutory references are to the Vehicle Code unless otherwise indicated.)
We disagree.

                                        Background

       California Highway Patrol (CHP) Officer Cindy Lee Morgan was called to assist
the Nevada County sheriff’s deputies conducting the September 15, 2011, search on Dog
Bar Road.
       Officer Morgan located a “special construction” motorcycle. The license plate had
been stolen from another vehicle. Officer Morgan located a “[h]ighly irregular” number
that did not appear to be a manufacturer’s vehicle identification number (VIN). In

                                             4
addition to the irregular number, the motorcycle had an Arizona “blue tag,” which is
intended to replace a VIN. This “blue tag” appeared wrinkled, “ripped off” from an
unspecified surface, and attached to the frame where Officer Morgan found it.
Unspecified “confidential installation techniques” had not been used during the
attachment. Finally, the serial numbers on the transmission and engine did not match.
Inside the motorcycle’s saddle bag was a certificate of title issued to Josh Cuneo and
signed over to Terri Harmon in August 2011. Defendant’s name was not on any
paperwork associated with the motorcycle.
       Officer Morgan sent notice to Cuneo that the motorcycle had been seized and that
he could oppose any proceedings. Cuneo did not respond. Officer Morgan also
contacted Harmon, who claimed ownership of the motorcycle and signed her ownership
interest over to the CHP. The CHP then disposed of the motorcycle.
       On December 21, 2011, the trial court ordered the sheriff’s department to release a
“Harley-Davidson motorcycle” with specified VIN to defendant “upon proof of legal
ownership and current registration.” Defendant failed to appear at future court
appearances and did not attempt to satisfy the conditions of the release order.
       On October 17, 2012, defendant filed a motion for return of property seized during
the September 15, 2011, search, including the motorcycle. At an October 25, 2012,
hearing on the motion, Cuneo testified that he traded the motorcycle to defendant in
exchange for a 1971 Pontiac Firebird and a gold coin. The motorcycle was not registered
at the time of the transaction, but Cuneo gave defendant a signed pink slip.
       Defendant testified that he brought the pink slip to the Department of Motor
Vehicles (DMV) to put the motorcycle in his name but was told he first needed to get a
brake and lamp inspection. According to defendant, the title was put in Harmon’s name
rather than his own for insurance purposes.




                                              5
       Following the presentation of evidence and arguments of the parties, the trial court
granted defendant’s motion as to items of personal property and cash but denied it as to
vehicles and registration papers not in his name, including the motorcycle.
       The trial court explained its ruling as follows: “Next, I move on to the
motorcycle, and that is a tough one because rightly or wrongly DMV registered it for a
period of time. [¶] But that said, we still get back to what the uncontradicted evidence is:
Cuneo bought it. He owned it, he registered it, and although his intent was to sell it to
[defendant], indeed it was transferred to another party, a Ms. Harmon, and she being the
proper target of the transfer released her interest. [¶] The dispute or remedy, as it were,
between [defendant] and Ms. Harmon, that’s the area of dispute. [¶] She released the
rightful interest in the motorcycle to CHP having been given notice required under
[section] 10751(b). She released it. [¶] That then clears law enforcement to dispose of it
according to law. [¶] If there is a debate about that, it is a private debate between
[defendant] and Ms. Harmon, because to use the expression ‘she may have done him
dirt,’ but that is a private matter unrelated to the action in front of the Court. [¶] I need
to comment on the order in December about the return of the property. I am not going to
second-guess the wisdom of the order. [¶] I’m merely going to rely upon what it says,
and it requires [defendant] to prove both legal ownership and registration. [¶] We all
know he couldn’t do the latter, and even the former is tough because there is no pink
[slip], there is no registration, there is no bill of sale. What we have is an oral deal. [¶]
. . . [¶] But the truth is it was a conditional order. It required, rightly or wrongly, both
proof of legal ownership and current registration, and unless and until that’s cleared then
it doesn’t get returned. That was the terms of the order. [¶] . . . [¶] I am willing to
accept the testimony of Mr. Cuneo that he registered it. [¶] Be that as it may, the rights
under . . . [section] 10751(b) have been relinquished by Ms. Harmon. [¶] The dispute is
between [defendant] and Ms. Harmon. It is not between [defendant] and law
enforcement, who have done what’s required of them and, therefore, they are entitled to

                                               6
dispose of the motorcycle according to law; and given the relinquishment, if they need
one, they can get a [section] 10751(b) order out of the Court.”

                                           Analysis

       Section 10751 provides in relevant part:
       “(a) No person shall knowingly buy, sell, offer for sale, receive, or have in his or
her possession, any vehicle, or component part thereof, from which any serial or
identification number, including, but not limited to, any number used for registration
purposes, that is affixed by the manufacturer to the vehicle or component part, in
whatever manner deemed proper by the manufacturer, has been removed, defaced,
altered, or destroyed, unless the vehicle or component part has attached thereto an
identification number assigned or approved by the department in lieu of the
manufacturer’s number.
       “(b) Whenever a vehicle described in subdivision (a), including a vehicle
assembled with any component part which is in violation of subdivision (a), comes into
the custody of a peace officer, it shall be destroyed, sold, or otherwise disposed of under
the conditions as provided in an order by the court having jurisdiction. No court order
providing for disposition shall be issued unless the person from whom the property was
seized, and all claimants to the property whose interest or title is on registration records in
the Department of Motor Vehicles, are provided a postseizure hearing by the court having
jurisdiction within 90 days after the seizure. This subdivision shall not apply with respect
to a seized vehicle or component part used as evidence in any criminal action or
proceeding. Nothing in this section shall, however, preclude the return of a seized
vehicle or a component part to the owner by the seizing agency following presentation of
satisfactory evidence of ownership and, if determined necessary, upon the assignment of
an identification number to the vehicle or component part by the department. [¶] . . . [¶]




                                              7
       “(d) Whenever a peace officer seizes a vehicle described in subdivision (a), the
person from whom the property was seized shall be provided a notice of impoundment of
the vehicle which shall serve as a receipt . . . . [¶] . . . [¶]
       “(e) A hearing on the disposition of the property shall be held by the superior
court within 90 days after the seizure. The hearing shall be before the court without a
jury. A proceeding under this section is a limited civil case.”
       Defendant claims section 10751, subdivision (d) entitled him, as the person from
whom the motorcycle was seized, to receive a notice of impoundment; and subdivision
(e) entitled him to notice of the date, place, and time of any court hearing. He claims
section 10751, subdivision (b) prevents a court from ordering disposition of the seized
motorcycle unless he receives a post seizure hearing within 90 days after the seizure.
       Defendant quotes, but does not discuss, section 10751, subdivision (b)’s provision
that “Nothing in this section shall, however, preclude the return of a seized vehicle or a
component part to the owner by the seizing agency following presentation of satisfactory
evidence of ownership . . . .” (Italics added.) The provision applies to “this section,” i.e.,
the entirety of section 10751, including the procedural requirements of subdivisions (b),
(d), and (e). This means that neither a failure to comply with subdivision (b) nor the
presently asserted failures to comply with subdivisions (d) and (e) would have precluded
the CHP from physically returning the motorcycle to Harmon whom “evidence”
“satisfactory” to the CHP had shown to be the “owner[]” of the motorcycle. (§ 10751,
subd. (b).) In short, CHP was entitled to return the motorcycle to Harmon whether or not
defendant received statutory notice and a hearing which it appears the CHP offered to do.
       That did not happen in this case, because Harmon elected instead to relinquish her
ownership interest to the CHP. The remaining question is whether Harmon’s election
preserves for defendant any section 10751 claims that would have been mooted had she
opted for physical return of the motorcycle. Defendant does not address this question,
thus forfeiting the point on appeal. (E.g., People v. Harper (2000) 82 Cal.App.4th 1413,

                                                 8
1419, fn. 4 (Harper).) In any event, nothing in the statute suggests that an owner’s
election of relinquishment of a vehicle in lieu of physical return somehow preserves a
mere possessor’s claim of lack of notice. As to the motorcycle, defendant’s motion for
return of property was properly denied.
       Defendant lastly contends the CHP’s disposition of the motorcycle does not
discharge the motorcycle from the custody of the court as an item seized under warrant.
(Citing Ensoniq, supra, 65 Cal.App.4th at p. 1546.) Ensoniq considered Penal Code
section 1536, which provides: “All property or things taken on a warrant must be
retained by the officer in his custody, subject to the order of the court to which he is
required to return the proceedings before him, or of any other court in which the offense
in respect to which the property or things taken is triable.”
       The trial court rejected defendant’s contention, explaining that items of contraband
fall outside the scope of Penal Code section 1536. The court said, “[such items may] be
certainly not listed in the warrant and have nothing to do with the affidavit of probable
cause to justify the warrant, but if it is found to be contraband, then it is seized and kept
subject to disposition by law or a motion such as this.”
       Defendant does not address the trial court’s remarks or demonstrate error in its
analysis. Any claim of error is forfeited. (Harper, supra, 82 Cal.App.4th at p. 1419, fn.
4.)
       In any event, there was substantial evidence that the motorcycle or portions
thereof lacked proper identification and thus was contraband. Defendant’s Penal Code
section 1536 claim has no merit.




                                               9
                                       DISPOSITION

       The appeal is dismissed. Treating the appeal as a petition for writ of mandate, the
petition is denied.



                                                       HULL                  , J.



We concur:



      BLEASE                , Acting P. J.



      MURRAY                , J.




                                             10
