Filed 9/29/14 P. v. Marbain CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139387
v.
DAVID RENE MARBAIN,                                                  (Sonoma County
                                                                      Super. Ct. No. SCR594444)
         Defendant and Appellant.


         Defendant David Rene Marbain, who pleaded guilty to felony possession of
concentrated cannabis, sought return of peyote that was seized along with marijuana at
his residence. The trial court denied the motion for return of the peyote and rejected
defendant’s claim that the peyote was intended for religious use. On appeal from the
order denying return of the peyote, defendant claims the court improperly considered
irrelevant facts as well as facts outside the record. Although the challenged order is
nonappealable, we shall exercise our discretion to treat the purported appeal as an
extraordinary writ petition and deny the petition on the merits.
                              FACTUAL AND PROCEDURAL BACKGROUND
         The Sonoma County District Attorney charged 13 individuals, including
defendant, with drug-related offenses. The charges against defendant included
cultivation of marijuana (Health & Saf. Code, § 11358), possession of marijuana for sale
(Health & Saf. Code, § 11359), possession of peyote (Health & Saf. Code, § 11350, subd.
(a)), and manufacture, possession, or possession for sale of prohibited weapons (billy and
nunchaku) (Pen. Code, § 12020, subd. (a)(1)), among other charged offenses.


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       Defendant moved for “return of sacred medicine (peyote),” arguing that peyote
seized by police was intended for religious purposes and was therefore not contraband.
Defendant described the motion as a “nonstatutory motion for return of property seized
without a warrant.” The motion was supported by a declaration from Reverend Randy
Hurley, who described himself as an officer of a local chapter of the Native American
Church and stated that defendant had been an active member of the church as well as a
“recognized roadman or minister for over 20 years.”
       Defendant pleaded no contest to one count of possessing concentrated cannabis in
violation of Health and Safety Code section 11357, subdivision (a). In exchange for the
plea, the district attorney agreed to dismiss all of the remaining charges against
defendant. At the time of the plea, the court had not yet heard defendant’s motion to
return the peyote.
       Following entry of his plea, defendant renewed his motion for return of the peyote.
Defendant sought the return of 4.46 pounds of peyote, 27 peyote plants, and various
peyote samples that had been seized.
       In opposition to the motion, the district attorney stated that sheriff’s deputies had
obtained a warrant to search multiple residences based upon probable cause that illegal
marijuana cultivation and distribution was taking place at the residences. Pursuant to the
search warrant, deputies searched a residence that was linked to defendant. According to
the district attorney, deputies found the following items at the residence: “249 marijuana
plants, grow lights, 22 bags and 6 pounds of marijuana, 27 peyote plants, 2 paper bags of
peyote, pay/owe sheets and grow notes, over $5,700 in cash, financial records, and
multiple cell phones.” The district attorney did not submit any declarations or other
evidence in support of the opposition.
       The trial court heard defendant’s motion on July 11, 2013. Defendant was the sole
witness at the hearing. He testified that he had been a member of the Native American
Church since 1978 and held the position of road man, which he described as a minister or
ceremonial leader. According to defendant, peyote plays a sacred and pivotal role in the
Native American Church. He claimed the peyote seized by sheriff’s deputies was to be


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used for future ceremonies and that he had never sold peyote. Defendant admitted upon
cross-examination that, at the time of the search, he lived at the residence where the
peyote was found. He acknowledged that approximately 249 marijuana plants and 21
pounds of processed marijuana were seized from his residence along with the peyote. He
also agreed that deputies seized $5,700 in cash from the residence. However, the
prosecutor was unsuccessful in eliciting testimony from defendant about pay/owe sheets,
financial records, and cell phones recovered from the residence. Defendant either denied
knowledge of the facts when questioned, or the trial court sustained objections to the
prosecutor’s questions.
       The trial court denied the motion. The court began by stating that it would have
no problem returning the peyote if defendant possessed it “solely for religious purposes,”
citing the California Supreme Court’s decision in People v. Woody (1964) 61 Cal.2d 716
(Woody). However, the court believed the facts in this case were different from those in
Woody. The court then recited the facts set forth by the prosecutor, including that
deputies found substantial amounts of marijuana and cash at a house where defendant
resided. The court also noted that defendant had been convicted of a felony narcotics
offense as a result of the investigation. The court concluded that defendant had “failed to
prove . . . that the possession of peyote was solely for religious purposes, since it was so
closely intermingled with his illegal narcotics activities” of which he was convicted.
Defendant filed a notice of appeal from the trial court’s order denying his request to
return the peyote.
                                        DISCUSSION
1.     Appealability of order denying nonstatutory motion to return property
       Although the parties did not question the appealability of the trial court’s order,
“since the question of appealability goes to our jurisdiction, we are duty bound to
consider it on our own motion.” (Olson v. Cory (1983) 35 Cal.3d 390, 398.) We
afforded the parties an opportunity to address the issue in supplemental briefing. (See
Gov. Code, § 68081.) As we explain, the order denying defendant’s nonstatutory motion
for return of seized property is not appealable.


                                              3
       A criminal defendant may move for return of property before trial under Penal
Code section 1538.5 on the ground the seizure was unreasonable. (People v. Lamonte
(1997) 53 Cal.App.4th 544, 549.) The denial of a statutory motion for suppression of
evidence or return of property may be reviewed on appeal if the defendant raised the
issue before being convicted. (Pen. Code, § 1538.5, subd. (m); People v. Davis (2008)
168 Cal.App.4th 617, 629.)
       Alternatively, a defendant may bring a nonstatutory motion for return of seized
property that remains in the possession of the police. (People v. Lamonte, supra,
53 Cal.App.4th at p. 549; accord, Gershenhorn v. Superior Court (1964) 227 Cal.App.2d
361, 364–365.) The right to seek redress by means of a nonstatutory motion rests on the
trial court’s inherent authority to return property seized under color of law. (People v.
Hopkins (2009) 171 Cal.App.4th 305, 308.) It is well settled that an order disposing of a
nonstatutory motion for return of property is not appealable. (Ibid.; accord, People v.
Gershenhorn (1964) 225 Cal.App.2d 122, 125–126.) This is so because “the right to
appeal is wholly statutory and a judgment or order is not appealable unless it is expressly
made so by statute.” (People v. Hopkins, supra, at p. 308.) “A motion for return of
property is a separate procedure from the criminal trial and is not reviewable on an appeal
from an ultimate judgment of conviction.” (Ibid.) Further, “[a]n order denying a motion
for return of property . . . is not among the matters for which an appeal is permitted under
Penal Code section 1237.” (Ibid.) The proper method to seek appellate review of an
order denying return of property is through a petition for writ of mandate. (Ibid.; accord,
People v. Gershenhorn, supra, 225 Cal.App.2d at p. 126.)
       In this case, defendant pursued a nonstatutory motion for return of property.
Defendant denominated his motion as nonstatutory, did not present any statutory grounds
justifying return of the peyote, and did not seek to suppress evidence on the ground it was
unlawfully seized. Indeed, even in the briefing on appeal defendant refers to his request
for return of property as a nonstatutory motion. Consequently, the order denying return
of the property is not appealable and the appeal is subject to dismissal. (People v.
Hopkins, supra, 171 Cal.App.4th at p. 308.)


                                              4
       In supplemental briefing, defendant contends the order denying return of the
peyote is appealable under subdivision (b) of Penal Code section 1237 because it is an
“order made after judgment, affecting the substantial rights of the party.” The thrust of
his argument is that the challenged order affects his constitutional right to free exercise of
religion. We are not persuaded that the assertion of a constitutional claim affords a party
the right to appeal from an order that is otherwise nonappealable. Further, the case law
relied upon by defendant does not support his contention.
       Defendant primarily relies upon People v. Beck (1994) 25 Cal.App.4th 1095
(Beck), a case in which a defendant sought the return of firearms that had been seized
pursuant to former Penal Code section 12028 (hereafter former section 12028).1 That
section provided in relevant part that any firearm used in the commission of an offense
was to be surrendered to authorities upon the conviction of the defendant. (Former
§ 12028, subds. (b) & (c); see Beck, supra¸ at pp. 1100–1101.) The defendant in Beck
filed both an appeal and a petition for writ of mandate, which were consolidated for
purposes of decision. (Beck, supra, at pp. 1097–1098.) In discussing the appealability of
the order denying the motion for return of property, the Beck court observed that the
denial of the motion was properly reviewable by writ of mandate. (Id. at p. 1104.)
However, the court also noted that, in contrast to a motion for return of property that
involves a proceeding separate from the proceedings resulting in the criminal conviction,
the application of former section 12028 is automatic upon conviction and does not
involve a separate proceeding. (Beck, supra, at p. 1104.) Consequently, the court
concluded that an erroneous confiscation of firearms under former section 12028 is
appealable because it “ ‘involve[s] . . . the charge against defendant or his rights as
affected by that charge.’ ” (Beck, supra, at p. 1104.) The court distinguished between
the confiscation under former section 12028—which was appealable—from the denial of
the motion to return property—which was reviewable by writ. (Beck, supra, at pp. 1105–
1106.) The court maintained this distinction in its disposition, in which it reversed the

       1
       Former Penal Code section 12028, as amended by Stats. 2004, ch. 602, § 2, was
repealed and reenacted as Penal Code section 18000 by Stats. 2010, ch. 711, § 6.

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order confiscating firearms in the appeal, and separately granted the petition for writ of
mandate and directed the trial court to grant the motion for return of the firearms. (Id. at
p. 1106.)
       Here, unlike in Beck, we are concerned solely with a nonstatutory motion to return
property. Former section 12028 is inapplicable. The seizure of the peyote was not an
automatic or necessary consequence of defendant’s conviction. Further, the motion to
return the property necessitated a proceeding separate from the proceeding that resulted
in defendant’s conviction. Consequently, Beck does not support defendant’s contention
that the court’s order in this case is appealable.
       Defendant also relies on People v. Superior Court (Loar) (1972) 28 Cal.App.3d
600, but that case actually supports the view that an order denying return of property is
nonappealable. In Loar, the People challenged an order directing the return of
purportedly obscene films, photographs, and other materials. (Id. at p. 604.) Defendant
seizes upon references in the Loar opinion to First Amendment rights, but the
constitutional nature of the claims did not make the challenged order appealable. Instead,
the matter was pursued as a writ proceeding, and the court in Loar made clear that the
order directing return of property was not appealable. (Id. at p. 621.) The court stated:
“Although it was an order made after judgment, it did not affect ‘the substantial rights of
the People’ with respect to the judgment in the criminal action. [Citations.] Had the
motion [for return of property] been denied, defendants could not have appealed from the
order of denial. [Citations.] By the same token, the People are not entitled to appeal
from an order granting the motion. The People’s remedy was by extraordinary writ, a
remedy which they have invoked.” (Ibid.) Therefore, even though Loar involved
constitutional claims relating to seized property, Loar does not stand for the proposition
that the assertion of constitutional claims allows one to appeal as a matter of right from
an order denying a nonstatutory motion to return property.
       Finally, defendant claims that he would have had a right to appeal if he had simply
characterized his request for relief a statutory motion under Penal Code section 1538.5.
We disagree. That section provides in relevant part that a defendant who pleads guilty


                                               6
may seek further review of the validity of a search or seizure “on appeal from a
conviction” if, “at some stage of the proceedings prior to conviction he or she has moved
for the return of the property or the suppression of the evidence.” (Pen. Code, § 1538.5,
subd. (m), italics added.) The statute clearly contemplates that the trial court will have
heard the statutory motion before the defendant is convicted so that the ruling may be
reviewed as part of the appeal from the judgment of conviction. Here, defendant’s
motion was not fully briefed and heard until after he was convicted. He did not appeal
from the judgment of conviction but instead appealed from the subsequent order denying
return of the peyote. Indeed, defendant’s notice of appeal was not filed until nearly seven
months after the date he was convicted and sentenced. Merely characterizing the motion
as a request for relief under Penal Code section 1538.5 would not have given defendant
the right to appeal the denial order as part of the judgment of conviction, because the time
to appeal that judgment had long since passed. (Cal. Rules of Court, rule 8.308(a) [notice
of appeal must be filed within 60 days].)
2.     Writ review
       Although the challenged order is not appealable, we have the discretion to treat a
purported appeal from a nonappealable order as a petition for extraordinary writ relief.
(See In re M.R. (2013) 220 Cal.App.4th 49, 65.) Under the circumstances presented here,
we shall exercise our discretion to treat the appeal as a writ petition in order to reach the
merits of the dispute.
       A person is not entitled to the return of property that it is unlawful to possess.
(Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1547.) It is unlawful to
possess peyote. (Health & Saf. Code, §§ 11054, subd. (d)(15), 11350, subd. (a).)
However, in Woody, supra, 61 Cal.2d at pages 725–727, our Supreme Court held that the
state may not prohibit the use of peyote by a person who demonstrates a bona fide
religious belief in Peyotism. The court based its decision on the free exercise clause of
the First Amendment. (Ibid.) Consequently, a person may be entitled to have
confiscated peyote returned if that person can demonstrate that the possession and use of
peyote serves a religious purpose.


                                              7
       In determining whether peyote serves a religious purpose, the trier of fact “must
ask whether the claimant holds his belief honestly and in good faith or whether he seeks
to wear the mantle of religious immunity merely as a cloak for illegal activities.”
(Woody, supra, 61 Cal.2d at p. 726.) The trial court “ ‘will have to determine in each
instance, with whatever evidence is at hand, whether or not the assertion of a belief which
is protected by the First Amendment is in fact a spurious claim.’ ” (Ibid.; see In re Grady
(1964) 61 Cal.2d 887, 888 [factual question existed as to whether defendant’s claimed
religious use of peyote was bona fide].)
       Here, the trial court determined as a factual matter that defendant’s possession of
peyote was not for a religious purpose despite his claim otherwise. The court reasoned,
in effect, that the presence of substantial quantities of illegal drugs at the residence
supported an inference that the peyote did not serve a bona fide religious purpose. The
court’s factual determination is entitled to deference. (Cf. People v. Jenkins (2000)
22 Cal.4th 900, 969.)
       Defendant has offered no compelling reason for this court to reject the trial court’s
factual determination. He contends the trial court improperly based its decision on
hearsay and considered irrelevant and prejudicial evidence. However, because he did not
object to the facts offered by the prosecution as hearsay or object to the evidence as more
prejudicial than probative, he waived any such objections. (See In re C.B. (2010)
190 Cal.App.4th 102, 132.) In any event, as a result of defendant’s admissions on cross-
examination, the court had before it ample, competent evidence that the peyote was found
along with illegal drugs and evidence of drug sales, including large amounts of cash.
Further, defendant was convicted of a felony narcotics offense and necessarily admitted
the factual basis for his conviction as part of his plea. Consequently, there was
substantial evidence to support the trial court’s conclusion that the intermingling of
illegal drugs with peyote tended to show that the peyote was not used for religious
purposes. We conclude that defendant’s challenge to the order denying his motion for
return of peyote lacks merit.



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                                        DISPOSITION
       We construe the purported appeal from the order denying defendant’s nonstatutory
motion for return of peyote as a petition seeking extraordinary writ relief. So construed,
the petition is denied on the merits.
                                                 _________________________
                                                 McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.




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