People v. Hopkins

Opinion

RAMIREZ, P. J.

Defendant Eric Eugene Hopkins appeals from an order denying his motion for return of property following the prosecution’s dismissal of marijuana-related charges because the marijuana was legally possessed under the Compassionate Use Act of 1996. (Health & Saf. Code, § 11362.5.)

BACKGROUND

Defendant was charged with transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c)), in a felony complaint. On March 26, 2008, criminal charges were dismissed on motion of the prosecutor. On April 14, 2008, defendant made a nonstatutory motion for return of property. The basis for the motion was that the marijuana had been legally possessed pursuant to the Compassionate Use Act. (Health & Saf. Code, § 11362.5.) On April 17, 2008, the motion was denied. Defendant appealed.

DISCUSSION

At his request, this court appointed counsel to represent defendant on appeal. Counsel has filed a brief under the authority of

People v. Wende

(1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] and

Anders v. California

(1967) 386 U.S. 738 [18 L.Ed.2d 493, 87 S.Ct. 1386], setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of

People v. Kelly

(2006) 40 Cal.4th 106 [51 Cal.Rptr.3d 98, 146 P.3d 547], we have independently reviewed the record for potential error.

At the outset, we observe that defendant’s counsel has acknowledged that the order denying the motion for return of property may not be an appealable order. We do not deal with a denial of statutory motion for return of property due to an unlawful search or seizure. (Pen. Code, §§ 1536, 1538.5, 1539,

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