People v. Superior Court (Aquino)

Opinion

WHITE, P. J.

The People of the State of California, represented by the San Francisco District Attorney, challenge a magistrate’s ruling denying them party status on a motion to return property seized during execution of a search warrant. They contend that the superior court erred in failing to issue a writ to compel the magistrate to grant them party status. We conclude that under the circumstances of this case, the magistrate exceeded his jurisdiction and the superior court erred. We direct the superior court to issue writ of mandate (Code Civ. Proc., §§ 904.1, subd. (a)(4), 1086).

The San Francisco District Attorney’s office has been involved in the ongoing investigation of real party in interest, Lieutenant Colonel Michael Aquino. Assistant District Attorney Michael Williams reviewed police reports and evidence, assisted in the preparation of the affidavit in support of

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a search warrant, reviewed the final form of the warrant before it was presented to a judge, reviewed all property seized pursuant to the warrant, and arranged with defense counsel for the return of many of the items seized. However, to date no criminal charges have been brought against Colonel Aquino.

Some three months after execution of the search warrant, Lieutenant Colonel and Mrs. Aquino noticed a motion to restore the property (Pen. Code, §§ 1539-1540). The notice, filed in the municipal court, entitled “In re 36 Video Tapes, etc., seized from Lieutenant Colonel and Mrs. Michael Aquino,” was directed to the San Francisco Police Department, and was served on the legal department of the police department but not upon the district attorney. The motion was heard by a municipal court judge, apparently sitting as a magistrate as suggested by Penal Code section 1540.

On the date of the hearing, having learned of the matter by chance, Assistant District Attorney George Butterworth appeared and asked the magistrate to grant his office the status of representative for a party to the proceedings. The magistrate denied the request, permitting Mr. Butter-worth to argue the motion in an “advisory capacity,” but not to question witnesses. Not satisfied with this result, petitioner sought a writ of mandate or prohibition and a stay from the superior court. That court issued a stay of the proceedings in the municipal court and an alternative writ of mandate. After hearing, the court denied the peremptory writ of mandate. This petition followed. We stayed further proceedings in the municipal court in order to consider the legal issues raised.