People v. One 1986 Toyota Pickup (1995) 31 Cal. App. 4th 254 [37 Cal…

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People v. One 1986 Toyota (1995)

31 Cal. App. 4th 254 [37 Rptr. 2d 29]

[No. F020303. Dist. Jan 3, 1995.]

THE PEOPLE, and Respondent, v. ONE 1986 TOYOTA Defendant; ROBERTO DE LA TORRE, and Appellant.

(Superior Court of County, No. 220369, James M. Judge.)

COUNSEL

Robin M. for Claimant and Appellant. [31 Cal. 4th 257]

Daniel E. Lungren, General, George Williamson, Assistant Attorney General, W. Schons, Assistant Attorney and Jeffrey J. Koch, Deputy General, for Plaintiff and Respondent.

McMECHAN, J. fn. *

Statement of the Case and

On March 26, 1992, the United Reduction and Apprehension Program Force, assisted by the Bakersfield Department, detained claimant’s and seized the 1986 Toyota truck (Cal. license No. which he had been driving. cousin and the latter’s passenger arrested for possession and sales of (Health Saf. Code, §§ 11360.) On the same date, the force issued both cousin and the cousin’s passenger for seizure/personal notices of nonjudicial proceedings.

On April 14, 1992, the through the Kern County Attorney’s Office, mailed a notice of nonjudicial forfeiture to the registered owner of the truck. claimant filed a claim in County Superior Court to the forfeiture.

On April 18, 25, and May 2, 1992, the attorney published a public of nonjudicial forfeiture (Health Code, § 11488.4, subd. in the Bakersfield Californian newspaper. On 23, 1992, the People filed a for forfeiture of the 1986 Toyota and named Roberto De La Torre as On February 10, 1993, the People for default judgment of the pickup on the no answer had been filed in to the complaint.

On the date set for proving up the judgment, claimant, who was present, was not to appear by the court on the basis it was a proceeding and claimant’s failure to an answer precluded his right to The court granted a judgment as The claimant later moved for from the default judgment was denied by the court. Claimant a timely notice of appeal. [31 App. 4th 258]

Discussion

I. Did the Court Abuse Its Discretion by Not Claimant to Be Heard at the Default

[1a] Claimant contends the court abused its discretion by to allow him to oppose the People’s for default and judgment in open

Claimant specifically argues: timely filed a verified Opposing Forfeiture. When failed to file an Answer to the for Forfeiture, Plaintiff noticed a for Default and Judgment on the Pleading Appellant appeared at the time and set for the hearing on Real Party’s for default. Claimant was rudely, and unconstitutionally denied access to the Claimant was not allowed to address the in opposition to the motion, nor allowed to any explanation for his failure to file an This refusal of access was an of discretion by the trial court in case, and a denial of Appellant’s due and equal protection rights. * * *

Appellant, who speaks Spanish and was appearing in propria persona, was not to address the court; upon in court, Appellant explained he did not English, the Court retorted it did not speak Spanish. Thereafter, to allow Appellant to participate in the explain his failure to file an or even [attempt] to comprehend was going on, the court granted Motion for Default and Judgment on the [sic]. This ruling was to law, an abuse of discretion, and an to our system of justice.

In this the Kern County District Office served Jesus De La Torre and Maria Elna Torres with personal of Non-Judicial Forfeiture Proceedings. The attorney’s office served documents on claimant by registered On April 18, 25, and May 2, 1992, the district office published Notice of Forfeiture. On April 21, 1992, filed a claim opposing with the clerk of the superior On September 23, 1992, the district filed a complaint for forfeiture in court and served claimant by class mail. A notice to the complaint stated in both and Spanish: You have 30 Calendar after this notice is on you to file a typewritten response at court. You may not use a Claim Opposing as a response. [31 Cal. App. 4th

Claimant failed to file an to the complaint within the requisite 30 On February 10, 1993, approximately and one-half months later, the attorney filed a motion for judgment in superior court. On 9, 1993, the court conducted a on the motion at which the claimant He was not allowed to appear in the proceedings on the it was a default proceeding. Claimant he was under the misimpression his claim was an and wished to oppose the action. was non-English speaking and was not provided an interpreter, but merely advised by the that because of the failure to the required answer you lose. The thereafter entered default forfeiting the 1986 Toyota SR5 4X4

The forfeiture statutes do not set forth procedures for the conduct of default However, the applicable version of and Safety Code section subdivision (i) stated in relevant The provisions of the Code of Civil shall apply to proceedings this chapter unless inconsistent with the provisions or set forth in this chapter.

[2] Code of Civil Procedure 585 (judgment on default), the entry of a terminates a defendant’s rights to any further affirmative steps in the until either the default is set or a default judgment is entered. A against whom a default has entered is out of court and is not entitled to any further steps in the cause plaintiff’s right of action. v. Kearny Mesa AMC/Jeep/Renault, (1984) 155 Cal. App. 3d 385-386 [202 Cal.Rptr. Heathman v. Vant (1959) 172 App. 2d 639, 647 [343 104]; 6 Witkin, Cal. (3d ed. 1985) Proceedings Without § 242, pp. 544-545.) [1b] on the foregoing authority, the People claimant simply had no[] to appear, in pro per or otherwise, at the default He was not entitled to an interpreter.

Entry of default by the court is a statutory prerequisite to both a default judgment (Code Proc. § 585, subd. and a default judgment by the court Civ. Proc. § 585, (b) and (c)). (3 Cal. Civil Before Trial (Cont.Ed.Bar 3d ed. § 56.26, pp. 56-21.) Here, the never requested the clerk to claimant’s default. Rather, moved the court for a grant of judgment approximately five after filing their in forfeiture.

Claimant appeared at the 9, 1993, hearing on motion for judgment and apparently sought to the absence of an answer to the complaint in The court summarily granted the motion after noting the of an answer to the complaint. No default had [31 Cal. App. 4th 260] against claimant prior to the of the hearing, thus, his ability to an answer, appear, or make other motion was not cut off. The failure to allow the claimant to and be heard absent an entry of was an abuse of discretion.

The mandate of Health and Safety Code 11488.5 requiring an answer be within 30 days of service of the does not excuse noncompliance Code of Civil Procedure 585, 585.5 and/or

The People’s contention, that if the erred it was harmless, is without The default judgment entered 12, 1993, is reversed and the matter is to the superior court with to grant claimant 30 days’ to file an answer to the complaint for pursuant to former Health and Code section 11488.5, (a)(2). (Stats. 1990, ch. § 5.) In the event claimant timely an answer, the superior court is to conduct a contested judicial proceeding pursuant to former and Safety Code section subdivision (e)(1). (Stats. ch. 1200, § 5.) In the event claimant to timely file an answer, the court is directed to reinstate the judgment. (Code Civ. § 43.)

II. Did an Intervening Change in the Laws Require a Dismissal of the Action?

[3a] Claimant the Health and Safety Code which statutorily authorized the of property related to drug expired on January 1, 1994.

specifically argues:

California’s asset forfeiture laws are generally, in Health and Safety sections 11470, 11488.4[,] and Until the end of 1988, the California law required the state to obtain, in cases, a criminal conviction as a precedent to the forfeiture of any property and required the state to prove the was related to drug trafficking a reasonable doubt. However, the laws, as then embodied in the and Safety Code, contained a clause’ which read as

‘This section shall in effect only until 1, 1989, and as of that date is unless a later enacted which is enacted before 1, 1989, deletes or extends date[.]’ (Health and Safety § 11470[(i)]; 11488.4(i)(1); 11488.5(h) as read on December 31, 1988.) [31 App. 4th 261]

Before 1, 1989, the forfeiture laws in fact amended. [A] criminal was no longer required and the burden of was reduced to a preponderance of the evidence. rather than either or extend the date of expiration in the version of the law, the amended merely inserted a new ‘sunset which read as follows:

provisions of the Health and Safety amended by this act shall in effect only until 1, 1994, at which time sections as they read on 31, 1988, shall have the force and effect as if they had not amended.’ (Health and Safety § 11470(h); 11488.4(i)(5); 11488.5(j) of the law.)

Toyota CAL-1

The new ‘sunset clause’ extended the forfeiture laws to 1, 1994, then expressly the 1988 law as it existed on December 31, without in any way amending the previous clause.’ Since no statute was enacted to extend or delete the 1, 1989 expiration of the 1988 law, there is presently no of the drug asset forfeiture law in (Ops. Cal. Legis. No. 30765 (November 24, 1993) Substance-Asset Forfeiture.) fn. 1

Even the new law did not expressly revive the former law modification, the general rules the operation of statutes and laws in the Government Code would required the same result. Code section 9611 that any law temporarily modified be the [s]ame force and effect expiration of the modification as if the temporary had not been enacted at all. Had the law never been enacted, the forfeiture law would have by its terms on January 1, 1989.

no intent to extend the application of the law may be because forfeitures are generally and any statute imposing a [31 Cal. 4th 262] forfeiture of property be strictly construed against the [Citations omitted.]

Therefore, to the plain language of the forfeiture the Legislative Counsel’s published the required statutory construction, as as the Government Code, there exists no drug asset law. * * *

There being no final in this case, this is required to dismiss the instant and return the defendant property.

The District Court of Appeal, deciding the matter, has articulated the in the following manner: We are aware of the amendment to Health and Safety section 11470, providing the section remain in effect January 1, 1994, and that that date the section as it on December 31, 1988, would the same force and effect as if it had not amended. (Stats. 1988, ch. §§ 1, 16, pp. 5285-5287, 5298.) Health and Code section 11470 as it on December 31, 1988, included a that it would remain in only until January 1, unless an amendment enacted January 1989, deleted or that date. We recognize the inelegant language of the 1988 may ultimately have caused 11470 to be repealed as of January 1, (People v. Beck (1994) 25 App. 4th 1095, 1099, fn. 2 [31 44].)

[4] The repeal of a statute a penalty, running either to an or the state, at any time before judgment, extinguishes the right to the penalty. Forfeiture of a vehicle to transport narcotics is a penalty to performance of a duty and its penal being obvious, the repeal of the authorizing the forfeiture extinguishes the of forfeiture. (Lemon v. Los Angeles T. Ry. Co. 38 Cal. App. 2d 659, [102 P.2d 387]; v. One 1953 Buick (1962) 57 2d 358, 363 [19 Cal.Rptr. 488, 369 16] [construing predecessor statute].) the commission of the offense resulting in the the title of the state is inchoate or until such time as is a judicial determination of the forfeiture. v. Broad (1932) 216 Cal. 1, 4 [12 941], cert. den. 287 661 [77 L.Ed. 570, 53 S.Ct. Generally speaking, in the case of law or judicial forfeiture, the rights of the date from the judicial In the case of a legislative or statutory the rights of the state date to the time of the offense. (People v. One Buick, supra, 57 Cal. 2d at p. Since the title of the state [31 App. 4th 263] remains and incomplete until forfeiture is decreed, a substantial statutory in the conditions authorizing the forfeiture be governed by the general rule to the repeal of statutes of this The repeal operates to extinguish all rights or powers which are at the of repeal inchoate, incomplete, and (Moss v. Smith (1916) 171 777, 789 [155 P.90].) The of property used in violation of such as a vehicle used to narcotics, is the type of action was cognizable in a common law court. v. One 1941 Chevrolet Coupe 37 Cal. 2d 283, 300 [231 832].) However, the forfeiture is a statutory forfeiture. Having created by statute, it can be abolished or by statute at the will of the Legislature created it. (People v. One 1953 supra, 57 Cal. 2d at pp. 363-365.)

In a lengthy response, the People (1) under the plain meaning the January 1, 1989, repealer does not become effective the 1989 sunrise provision directs that on and after 1, 1994, the provisions ‘as read on December 31, 1988’ be in effect; (2) the manifest purpose of the was that the 1988 version of the substance forfeiture law was to be revived on 1, 1994; (3) the legislative history the Legislature intended for the 1988 of the asset forfeiture statutes to be and in full force and effect on 1, 1994; (4) the Legislature cannot be to have indulged in idle and there would have no need to amend the sunrise/sunset as recently as 1991 had the Legislature for all the asset forfeiture sections to be repealed on January 1, 1994; (5) of a statute can be effected only by of unmistakable meaning and there was no language here; (6) the pattern by the Legislature indicates that asset forfeiture law is to be in effect on 1, 1994, especially in view of Code section 9611; fn. 2 (7) argument, i.e. that the law was brought back on January 1, only to be instantly repealed by its own as of December 31, 1988, is an absurdity the court properly declined to and (8) although the rule of strict generally applies to forfeiture it does not apply to a determination of the intent as to an entire statutory

The ultimate interpretation of a statute is an of the judicial power, a power upon the courts by the Constitution. Mfg. Co. v. [31 Cal. App. 4th California E. Com. (1941) 17 2d 321, 326 [109 P.2d The primary rule of statutory to which every other must yield is that the of the Legislature should be given The language of any statute and provision may not be construed so as to nullify the will of the or to cause the law to conflict with the purpose the lawmakers had in view. Sch. Employees Assn. v. Elementary Sch. Dist. 45 Cal. App. 3d 683, [119 Cal.Rptr. 668].)

Legislative intent should be from the whole act rather from isolated parts or The object sought to be achieved by the and the evil sought to be prevented are of consideration in its interpretation. Where the purpose of the statute is expressed, the will construe it so as to effectuate purpose by reading into it is necessary or incident to the accomplishment of the sought. (Rushing v. Powell 61 Cal. App. 3d 597, [130 Cal.Rptr. 110].) fails to explain away the which looms in the instant the Legislature apparently brought the 1988 law on January 1, 1994, to have it instantly repealed by its own as of December 31, 1988. Moreover, of a statute can be effected only by of unmistakable meaning. (Rowe v. Sav. and Loan Society 134 Cal. 403, 406 [66 P. 569].)

Disposition

Reversed and remanded for proceedings consistent with opinion.

Ardaiz, P. J. and Harris, J.

FN *. Judge of the Mariposa Superior sitting under assignment by the of the Judicial Council.

FN *. Judge of the Superior Court sitting assignment by the Chairperson of the Judicial

FN 1. In a November 24, 1993, letter to John L. Burton, the Office of Counsel stated:


Examining the repealer language contained in the 31, 1988, versions of Sections 11473.3, 11488, 11488.4, and and utilizing the rules of construction. we that while the matter is not from doubt, the 1989 language in the sections could be deleted or extended by further directly or indirectly amending the language on or before January 1, that Section 16 neither nor indirectly deleted or extended the language; and that the absence of by the Legislature on or before January 1, regarding the 1989 repealer resulted in the sections being by their own terms on January 1, The sections thereby became of revival except by a statute adds them to the codes. The of the Legislature since January 1, to enact new versions of these which are or will become on January 1, 1994, results in no of the sections being operative on 1, 1994.

FN 2. Government Code 9611 states: Notwithstanding any provision of this chapter, a provision of law is temporarily suspended, or is or impliedly modified or repealed by a which is declared to be effective for a limited period, the original are not to be deemed repealed, but upon the of the time of the temporary suspension or the of the inconsistent provision, the original shall have the same and effect as if the temporary provision had not enacted.

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