People v. Marbain CA1/3

Filed 9/29/14 P. v. Marbain CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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