ENSONIQ CORP. v. SUPERIOR COURT
77 Cal.Rptr.2d 507 (1998)
65 Cal.App.4th 1537
ENSONIQ CORPORATION, Petitioner,
v.
The SUPERIOR COURT of Santa Clara County, Respondent;
Jon Dattoro, Real Party in Interest.
No. H016861.
Court of Appeals of California, Sixth District.
August 14, 1998.
Review Denied November 18, 1998.
James McManis, Esq., Michael Reedy, Esq., McManis, Faulkner & Morgan, San Jose, for Petitioner.
No Appearance for Respondent.
Eric M. Satire, Esq., San Francisco, Marvin Rous, Esq., San Francisco, Edward Mahler, Esq., San Jose, for Real Party in Interest.
COTTLE, Presiding Justice.
I. INTRODUCTIONThis matter arises from the competing claims of petitioner Ensoniq Corporation (hereafter, Ensoniq) and its former employee, real party in interest Jon Dattoro (hereafter, Dattoro) to intellectual property which Dattoro brought to California when he left his employment with Ensoniq. Ensoniq contacted the district attorney, who obtained a search warrant and seized the disputed property from Dattoro's residence. However, the district attorney decided not to prosecute Dattoro, who then brought a motion for return of the seized property.
Ensoniq now seeks a writ of mandate to compel respondent superior court to vacate its order setting forth the procedure for the hearing on Dattoro's motion for return of property seized under search warrant. In its order, the superior court ruled that Ensoniq has no standing to participate in the hearing, and permitted only the district attorney to
present evidence that Ensoniq is the rightful owner of the seized property. We hold that the superior court properly determined that, under the circumstances of this case, Ensoniq is a third party with no standing under the Penal Code to apply for delivery of the seized property or otherwise contest Dattoro's motion for return of seized property. We also hold that the court erred in requiring the district attorney to participate in the hearing, because the trial court cannot compel the district attorney to oppose a motion for return of seized property. The district attorney has not charged Dattoro with any crime, has conceded that the People cannot prove that Dattoro stole the seized property from Ensoniq, and has not objected to the return of the property to Dattoro.
Under these circumstances, due process requires that Dattoro's motion for return of legal property seized under warrant be granted, and that the superior court issue an order returning actual possession of the seized physical items to Dattoro. As we further explain, this order is limited to a determination of the right of actual possession of the physical items in this I proceeding, and has no effect upon the parties' competing civil claims to ownership of either the physical items or the intellectual property contained within them. We therefore grant the petition for writ of mandate, and direct respondent court to issue an order in accordance with our holding.
II. FACTUAL AND PROCEDURAL BACKGROUND
1. All statutory references are to the Penal Code unless otherwise noted.
2. Section 1536 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."
3. Section 1407 provides: "When property, alleged to have been stolen or embezzled, comes into the custody of a peace officer, he shall hold it subject to the provisions of this chapter relating to the disposal thereof."
4. Section 1408 provides: "On the application of the owner and on satisfactory proof of his ownership of the property, after reasonable notice and opportunity to be heard has been given to the person from whom custody of the property was taken and any other person as required by the magistrate, the magistrate before whom the complaint is laid, or who examines the charge against the person accused of stealing or embezzling it, shall order it to be delivered, without prejudice to the state, to the owner, on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate. The order entitles the owner to demand and receive the property."
5. Section 1409 provides: "If property stolen or embezzled comes into the custody of the magistrate, it shall be delivered, without prejudice to the state, to the owner upon his application to the court and on satisfactory proof of his title, after reasonable notice and opportunity to be heard has been given to the person from whom custody of the property was taken and any other person as required by the magistrate, and on his paying the necessary expenses incurred in its preservation, to be certified by the magistrate." (§ 1409.)
"If the property stolen or embezzled has not been delivered to the owner, the court before which a trial is had for stealing or embezzling it, upon the application of the owner to the court and on proof of his title, after reasonable notice and opportunity to be heard has been given to the person from whom custody of the property was taken and any other person as required by the court, may order it to be restored to the owner without prejudice to the state." (§ 1410.)
6. Section 1411 provides: "If the ownership of the property stolen or embezzled and the address of the owner, and the address of the owner of a security interest therein, can be reasonably ascertained, the peace officer who took custody of the property shall notify the owner, and a person having a security interest therein, by letter of the location of the property and the method by which the owner may obtain it. This notice shall be given upon the conviction of a person for an offense involving the theft, embezzlement, or possession of the property, or if a conviction was not obtained, upon the making of a decision by the district attorney not to file the case or upon the termination of the proceedings in the case. Except as provided in Section 217 of the Welfare and Institutions Code, if the property stolen or embezzled is not claimed by the owner before the expiration of three months after the giving of this notice, or, in any case in which such a notice is not given, before the expiration of six months from the conviction of a person for an offense involving the theft, embezzlement, or possession of the property, or if a conviction was not obtained, then from the time the property came into the possession of the peace officer or the case involving the person from whom it was obtained is disposed of, whichever is later, the magistrate or other officer having it in custody may, on the payment of the necessary expenses incurred in its preservation, deliver it to the county treasurer or other proper county officer, by whom it shall be sold and the proceeds paid into the county treasury. However, notwithstanding any other provision of law, if the person from whom custody of the property was taken is a secondhand dealer or licensed pawnbroker and reasonable but unsuccessful efforts have been made to notify the owner of the property and the property is no longer needed for the criminal proceeding, the property shall be returned to the secondhand dealer or pawnbroker who had custody of the property and be treated as regularly acquired property. If the property is transferred to the county purchasing agent it may be sold in the manner provided by Article 7 (commencing with Section 25500) of Chapter 5 of Part 2 of Division 2 of Title 3 of the Government Code for the sale of surplus personal property. If the county officer determines that any of the property transferred to him or her for sale is needed for a public use, the property may be retained by the county and need not be sold. The magistrate or other officer having the property in custody may, however, provide for the sale of the property in the manner provided for the sale of unclaimed property which has been held for at least three months pursuant to Section 2080.4 of the Civil Code."
7. Sections 1408-1410 were amended by Statutes 1971, chapter 799, to include the requirement that notice and an opportunity to be heard be given to the person from whom custody of the stolen property was taken.
8. We were advised for the first time during oral argument that Ensoniq has instituted civil proceedings against Dattoro.