SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 Back to previous page: Law Offices Attny, SBN # Street City, CA 0000 Telephone: (- Fax: (- Attorney for Defendant, XXX Est. Time 0 0 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE PEOPLE OF THE STATE OF CALIFORNIA, XXX Plaintiff, vs. Defendant Case No. Case # NOTICE OF MOTION AND MOTION FOR RETURN OF PROPERTY; POINTS, AUTHORITIES AND ARGUMENT IN SUPPORT THEREOF. Dept: C- Date: Time: :0 a.m. TO: THE DISTRICT ATTORNEY, COUNTY OF ORANGE AND THE ABOVE ENTITLED COURT: PLEASE TAKE NOTICE that on [date], at :0 a.m., or as soon thereafter as may be heard in Department C- of the above entitled court, Defendant XXX, through counsel, will move this court for an order directing the City Police Department to turn over to ATTORNEY, attorney for defendant, a large amount of money seized without warrant from the defendant s person on [date] by agents of the City Police Department.

2 Back to previous page: This motion will be based the accompanying points and authorities, the attached declaration, all records, documents, and pleadings on file with this Court, attached exhibits to this motion and on such oral and documentary evidence as may be presented at the hearing of the motion, and on any and any argument of counsel at the hearing herein. STATEMENT OF THE CASE On [date], the defendant was arrested by the City Police Department (CPD for suspicion of violation of Penal Code sections 0 [Embezzlement of Property], [Commercial Burglary] and (a [Grand Theft]. On [date], Preliminary Hearing was held. Defendant currently stands charged by Information with one count of violation of Penal Code section (a [Grand Theft by Embezzlement] with further allegations that the theft exceeded $00,000 (Penal Code section 0.0(a and the defendant intentionally took, damaged and destroyed property valued in excess of $00,000 during the commission of the offense (Penal Code section 0.(a(. STATEMENT OF FACTS As relevant to the motion presently before this Court, the defendant stands accused of embezzling monies from the accounts of her employer, Business x, as well as from the personal accounts of the two owners of Business x. The defendant worked as a bookkeeper for Business x from 00 until mid 00. After she was laid off, the owners of Business x discovered irregularities in the bank and credit card accounts of both the Business x business and owners personal accounts. The CPD conducted an investigation of the matter and concluded that the defendant was responsible for the theft and embezzlement of funds from Business x and Case No.

3 Back to previous page: from the personal accounts of the owners of the café. On [date], CPD arrived at the defendant s last known address with the intention to arrest her. A moving van was parked outside of the residence and one of the moving van people said that he would tell the defendant that someone was outside who wanted to speak with her. When the defendant exited the house, she was placed under arrest. Although it is not specifically stated in the CPD report, the defendant apparently had her purse with her at the time because the report states that after her arrest and booking, the defendant told the officers that she wanted her purse and the items in her purse to be kept as safe-keeping at the CPD. The CPD report states that [a] large of amount of money was located in DAmore s purse. (Exhibit A, line. The defendant told the officers that the cash was from the sale of some furniture. The CPD decided to book the unspecified amount of cash as evidence because of allegations that the cash might be connected to the crime in that [i]t was discovered that XXX made several unauthorized purchases of furniture and cash withdrawals during the crime stated in this report. (Exhibit A, lines -. POINTS, AUTHORITIES, AND ARGUMENT I. THE DEFENDANT HAS A RIGHT TO HAVE THIS COURT ORDER THE RETURN OF PROPERTY Penal Code section expressly confers power upon the Court to direct the return of property legally seized under a search warrant upon a showing of good cause. The same rule applies when property is seized, as is the case here, without a warrant. These facts are derived from the City Police Department Investigation Supplemental Report, DR#, dated [date] and attached herein as Exhibit A. Reported by the defendant to have been $,00. (See Declaration of XXX attached Case No.

4 Back to previous page: (Gershenhorn v. Superior Court ( Cal.App.d,. It is further within the scope of the Court s inherent power to control and prevent the abuse of process. (Buker v. Superior Court ( Cal.App.d 0, 0. This Court has authority to adjudicate motions for the return of seized property through "special proceedings." (See Ensoniq Corporation v. Superior Court ( Cal.App.th, ; Avelar v. Superior Court ( CaLAppAth 0, ; People v. Superior Court, Orange County ( Cal.App.d 00,0; Buker, supra, Cal.App.d at p. 0. [E]ven as to property not yet offered or received in evidence we think that judicial control still exists. We are not now concerned with a private seizure, by a private individual, for some purpose of his own. We deal with property seized by a public officer, acting under the color of his status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and except as the court may find use for it. He must respond, as does any custodian, to the orders of the court for which he acted. (Gershenhorn, supra, Cal.App.d at p..; The defendant seeks the release of her property under this Court s authority to so order. II. GOOD CAUSE EXISTS TO RELEASE THE SEIZED PROPERTY. The seized cash is not necessary to prove guilt and is not contraband; there is, therefore, no legal reason to retain the money. (Buker, supra, Cal.App.d at p Absent a contrary showing, the defendant is presumed to own the property she possessed when she was arrested and which was taken from her. (Evidence Code section Case No.

5 Back to previous page: [ The things which a person possesses are presumed to be owned by him. ]. The CPD report states that the cash was seized and retained as evidence because of an undefined and unsupported connection between the cash and the crime. The defendant explained that she had the cash from the sale of some furniture. The furniture she sold was her personal property. (See attached Declaration of XXX. The claim that this cash was derived from the sale of her personal furniture is further evidenced by the fact that she was in the process of moving from her residence when she was arrested. The CPD made some undefined connection, not stated elsewhere in the police report, that [i]t was discovered that XXX made several unauthorized purchases of furniture and also noted that the defendant was alleged to have made cash withdrawals during the commission of the crime for which she is accused. There was a period of at least six months between the last alleged act of theft committed by the defendant and the seizure of the large amount of money found in the defendant s purse at the time of her arrest. Is CPD alleging that she was carrying around cash that she stole over six months before? There is no evidence that the cash found in the defendant s purse was stolen and no nexus between the alleged unauthorized purchases of furniture and the cash the defendant received upon the sale of her personal furniture. The CPD seized this large amount of money because it is evidence. The cash has no demonstrated relationship to the alleged crime and would not help a jury decide the issue of guilt or innocence; the money is no more relevant to the defendant s guilt or evidence than any other cash the defendant may have had in her possession. The general test of relevancy in a criminal case is whether the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense. [Citations.] (People v. Warner ( 0 Cal.App.d 00, Case No.

6 Back to previous page: 0 Furthermore, the chain of custody of the property is uncertain. The CPD fails to state how much cash was seized, describing it only as a large amount of money. The cash is subject to challenge since without defining how much cash was seized, there is no reasonable certainty that the evidence presented would be the same evidence seized and left to such speculation, it must be excluded as evidence. (People v. Lozano ( Cal.App.d 0,. CONCLUSION For the reasons stated above, it is respectfully requested that this Court order the City Police Department to release the defendant s property described as a large amount of money to the defendant s attorney, ATTNY. Respectfully submitted, 0 Dated: Case No. ATTNY Attorney for XXX

7 Back to previous page: PEOPLE OF THE STATE OF CALIFORNIA, XXX, vs. SUPERIOR COURT OF THE STATE OF CALIFORNIA Plaintiff, Defendant FOR THE COUNTY OF ORANGE TO THE CITY POLICE DEPARTMENT: Case No.: [Proposed] Order GOOD CAUSE having been shown, it is hereby ordered that the large amount of money seized from the defendant s person upon her arrest on [date] be released to defendant s attorney, ATTNY, forthwith. Dated: Case No. Judge of the Superior Court