Harty v. Superior Court

[747]Opinion

PUGLIA, P. J. In this proceeding for extraordinary relief petitioner Frank W. Harty, the Sheriff of San Joaquin County, challenges an order made by respondent superior court releasing to real party in interest, Monte McFall, the Marshal of the Manteca-Ripon-EscalonTracy (Manteca) Municipal Court District, a .45 caliber Colt Commander pistol. The pistol had previously been seized by the Manteca Police Department from Gary Michael Hall who, as a consequence, was charged in the Manteca Municipal Court with a violation of Penal Code section 12025, prohibiting the concealed carrying of a concealable firearm without a license. (Hereafter all statutory references are to sections of the Penal Code.) Hall had pleaded guilty and the firearm had been confiscated by the municipal court, which ordered it transferred from the Manteca Police Department to the custody of the marshal for use in his official duties. The firearm had not been received in evidence in the municipal court proceedings.

The pistol was later surrendered by the marshal to sheriff’s officers of petitioner’s department in connection with an allegation of criminal conduct on the part of the marshal. Upon investigation, the Grand Jury of San Joaquin County refused to indict the marshal and he subsequently moved respondent court for return of the pistol. His motion was opposed by petitioner. Respondent court ordered the return of the weapon to the marshal, rejecting petitioner’s contention that the original order of the municipal court transferring possession of the weapon to the marshal was beyond that court’s jurisdiction. This petition followed.

We conclude that respondent court abused discretion in ordering the return by the sheriff to the marshal of the previously confiscated pistol. Section 12028 expressly provides for disposition of a weapon used in a violation of section 12025. The former section specifies the public officers to whom possession of such a weapon may be transferred. The marshal of a judicial district is not included therein. Although a marshal is a peace officer (§ 830.1), he is not a proper recipient for confiscated weapons used in a violation of section 12025 simply because the Legislature has not deigned to include him in section 12028 among those so designated.

Sections 12028 and 12030 do provide for the use by law enforcement agencies of confiscated weapons; such use however is confined to those [748]