Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCU224812, Patrick J. O’Hara, Judge.
Miguel Lopez Almengor, in pro. per., for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French, Jeffrey D. Firestone, and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Appellant challenges a default judgment ordering the forfeiture of cash and a cashier’s check seized during the execution of a narcotic search warrant at his home. Appellant did not ask the trial court for relief from the default judgment by filing a motion pursuant to Code of Civil Procedure section 473. Consequently, the primary issue on appeal is whether the government presented sufficient evidence to justify forfeiture of the assets. Specifically, the issue is whether the government established the prima facie case required by Health and Safety Code section 11488.5, subdivision (b)(1) by showing there was probable cause that the funds seized were the proceeds of drug sales.
We conclude that a showing of probable cause was made as to the $23,491 in cash seized, but an inadequate showing was made as to the source of the funds underlying the $10,278.68 cashier’s check.
The judgment of forfeiture will be upheld as to the cash and reversed as to the cashier’s check.
FACTS
On April 23, 2007, the Tulare County Sheriff’s Department and the local police department searched the home of appellant Miguel Lopez Almengor pursuant to a narcotics search warrant. The officers discovered 70.2 grams of methamphetamine, three methamphetamine pipes, marijuana, two digital gram scales, packaging materials, $23,491 in cash and a cashier’s check made payable to appellant.
One court has stated that a typical user of methamphetamine might consume an “eight ball”—which is one-eighth of an ounce (3.56 grams)—in about a week. (People v. Morgan (2005) 125 Cal.App.4th 935, 938.) The 70.2 grams seized constitutes nearly 20 eight-balls or 39 “teeners” (a 16th of an ounce) of methamphetamine. (See Pen. Code, § 1203.073, subd. (b)(2) [generally, a person convicted of possessing for sale 57 grams or more of a substance containing methamphetamine may not be granted probation].) The 70.2 grams would generate over $1,750 in proceeds if it was sold at $45 for 1/16th of an ounce.
Suspecting that the money was used in or generated by appellant’s sale of drugs, Detective Frank Zaragoza conducted an asset forfeiture investigation. Zaragoza interviewed appellant, appellant’s teenage daughter, and his live-in girlfriend, Sally Murillo. Zaragoza’s February 2008 declaration describes the interviews. That description is summarized in the following five paragraphs.
The teenage daughter admitted that appellant sold drugs from their home, the drugs and currency seized from her room were hidden there by appellant, appellant earned the money by selling drugs, and the money belonged to her father.
Murillo admitted that she used methamphetamine and that appellant supplied her with the drug. Murillo said that she helped appellant sell drugs, that appellant kept the drugs and money in his daughter’s bedroom, and that all of the money seized belonged to appellant.
Zaragoza gave Murillo a form declaration concerning ownership of seized currency or property and explained it to her. Murillo then signed the declaration, which stated that she was not the owner of the cash or cashier’s check. The handwritten explanation of how the money got there read as follows: “The currency is drug money. I see him sell meth in dimes & 1/16 oz (45.00). Sells @ least 4 x per day (100.00 min.)”
Appellant admitted to Zaragoza that he owned the drugs and the money seized from his daughter’s room. Appellant admitted selling methamphetamine from his home and keeping the drugs and money in his daughter’s room to avoid detection during parole home searches.
With respect to the cashier’s check, appellant told Zaragoza that it represented funds that his former wife, now deceased, received from Social Security. Appellant said that the funds represented “back pay.” Appellant stated the funds were his daughter’s inheritance and that he had deposited the funds into a savings account, but later withdrew the funds from the account so that Social Security would not discover he had over $2,000 in savings and discontinue his benefits.
Zaragoza formed the opinion that appellant’s explanation regarding the source of the funds represented by the cashier’s check lacked credibility because appellant had told him that his deceased wife had never been employed. Based on this inconsistency and appellant’s lack of employment, Zaragoza inferred that the funds represented by the cashier’s check were proceeds from the sale of drugs.
PROCEDURAL HISTORY
After appellant’s arrest, the People charged him with multiple counts of possessing methamphetamine for sale, maintaining a place for the sale of methamphetamine, and placing minors in a situation that endangered their person or health. The information also alleged that appellant had been convicted of felonies in 1991, 1993, 1995, and 1998.
In November 2007, appellant pled guilty to eight counts and was sentenced to eight years in prison.
In August 2007, prior to appellant’s conviction, the People filed a petition for forfeiture of the cash and check pursuant to Health and Safety Code section 11469 et seq. The deputy district attorney served appellant and Murillo with (1) the petition of forfeiture, (2) a notice of petition, and (3) a blank, two-page Judicial Council form MC–200 (rev. Jan. 1, 2002) entitled “Claim Opposing Forfeiture.”
Later in August, appellant signed a notice and acknowledgement of receipt that stated he had received the petition of forfeiture, the notice of petition, and the claim opposing forfeiture form. Appellant contends that on September 9, 2007, he sent the claim form back to the deputy district attorney. He does not assert, however, that he filed the claim form with the superior court, and nothing in the clerk’s transcript suggests it was filed.
In November 2007, after the abstract of judgment was filed in appellant’s criminal case, the People filed a request for entry of default in the forfeiture proceeding. The clerk’s office entered the default the day the request was filed.
Appellant contends that, before he received notice of the request to enter a default, he wrote to the deputy district attorney twice and sent her proof of the source of the currency and the cashier’s check.
In February 2008, the People filed (1) a request for court judgment, (2) a case statement in support of the request for default court judgment, (3) Zaragoza’s declaration in support of the request for default court judgment, (4) a request for judicial notice relating to certain documents filed in appellant’s criminal case, and (5) a proof of service by first-class mail that listed appellant, Murillo, and appellant’s daughter as persons served. The People’s case statement asserted (1) “the seized cash represents proceeds from [appellant’s] sales of methamphetamine” and (2) the “People believe the evidence is clear and convincing that the cashier’s check actually represents money derived from drug trafficking.”
A prove-up hearing of the default was held on March 18, 2008. Linda Almengor, a daughter of appellant, was present at the hearing and stated that she had proof with her that half of the confiscated money was “from Social Security and stuff.” The trial court explained to her that she did not have a basis for appearing at the hearing because she had not filed an answer or legally appeared in the matter. The trial court also told her that if she believed the default was taken through inadvertence or excusable neglect, she could ask to have the default set aside under Code of Civil Procedure section 473.
The court then listened to the prove-up, stated it was satisfied with Zaragoza’s declaration, and stated it would sign the default judgment. The default court judgment signed by the trial court on March 18, 2008, stated $24,491 (not $23,491) in United States currency and the cashier’s check for $10,278.68 were forfeited.
The People’s respondent’s brief states that the typographical error in the judgment should be corrected to reference $23,491 in United States currency.
On March 25, 2008, a week after the prove-up hearing, the People filed a proof of service that indicated appellant, Murillo, and Linda Almengor were served by first-class mail with a copy of the default judgment. Also on that date, the deputy district attorney sent a letter to appellant’s state prison address that stated she was enclosing a copy of the default court judgment and was “returning your documents that you had previously sent to my office as you requested in your last letter to me.”
Appellant filed a notice of appeal in July 2008.
DISCUSSION
I. Motion for Appointment of Counsel
In December 2008, this court received from appellant a motion for the appointment of appellate counsel, which referenced the Sixth Amendment to the United States Constitution.
The Sixth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” By its terms, the Sixth Amendment is limited to criminal prosecutions. Because this is a civil proceeding, not a criminal prosecution, the Sixth Amendment does not provide appellant with the right to the assistance of appointed counsel.
In addition, the Court of Appeal has concluded that an indigent party in a civil forfeiture proceeding does not have the right to appointed counsel. (People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942-944.)
Consequently, we denied appellant’s motion for appointed counsel in this appeal.
II. Appellant’s Contentions Regarding the Merits of the Forfeiture
Appellant’s opening brief asserts the proof presented by the People was insufficient to demonstrate the currency and check were derived from drug sales. In particular, appellant contends the property should be returned if there was no probable cause that it was linked to narcotics activity.
Appellant also asserts he can provide proof that the seized funds were derived from legitimate sources. For the sole purpose of stating fully appellant’s position on this point, the specific assertions of appellant regarding the source of the funds seized are set forth in this section of the opinion. We emphasize, however, that we are a court of review and, therefore, the facts and documents included in appellant’s brief that were not before the trial court at the time of its decision are not used as a basis for our decision in this appeal. (See Cal. Rules of Court, rule 8.204(a) [appellant’s brief must provide “summary of the significant facts limited to matters in the record”].)
A. Cashier’s Check
First, appellant asserts that the $10,278.68 cashier’s check was his minor daughter’s property and the funds were primarily a product of the payment of back benefits by the Social Security Administration to his minor daughter’s mother, Inez Marie Marquez. To support this assertion, appellant included a copy of a May 20, 2003, letter from the Social Security Administration to Inez M. Marquez that stated: “We owe you back [Supplemental Security Income] payments of $15,047.00 for February 2001 through May 2003.” The letter identified the type of payment as “Individual—Disabled.”
Appellant further asserts that the cashier’s check was his daughter’s inheritance from her mother.
Appellant also provided three account statements for an account maintained at a branch of Union Bank of California in the names of Inez Marie Marquez, his minor daughter, and himself. The statements show the account was opened on June 9, 2004, with a deposit of $5,000. Another $5,000 was deposited nearly a year later on May 18, 2005. Three other deposits of $300 each were made during the period covered by the April–June 2005 account statement. The July–September 2005 account statement shows three deposits of $200 each and an ending balance of $12,224.23.
The document most closely related to the cashier’s check is an early withdrawal worksheet from Union Bank of California that shows appellant made a six-month time deposit in mid-October 2006 of approximately $10,000 and withdrew that money on December 15, 2006. After the early withdrawal fee was deducted, the amount remaining was $10,278.68, which is the exact amount of the cashier’s check. Also, the cashier’s check was dated December 15, 2006, the same date as the withdrawal of the time deposit.
It appears that the timing of Marquez’s receipt of her disability benefits (May 2003, with a second installment six months later) renders that payment a possible source of the $5,000 deposit in June 2004 and the $5,000 deposit in May 2005, but no documents were provided that establish, or eliminate, Marquez’s supplemental security income benefits as the source of the funds deposited into the bank account.
B. Cash
Zaragoza’s declaration states that $23,491 in cash was seized from appellant’s home. The declaration does not state whether the money was all in one place or divided and placed in more than one location.
Appellant asserts the cash consisted of five different categories: (1) $6,008 contained in a metal box underneath his daughter’s bed, (2) $13,700 hidden inside a foot massager, (3) $3,265 from a sealed envelope hidden behind the bed’s headboard, (4) $118 taken from his wallet, and (5) $390 in a Social Security Administration envelope that had held the check he cashed to obtain the $390.
1. $13,700
Appellant contends that he obtained the $13,700 hidden inside the foot massager from the Social Security Administration. To support his contention, appellant included a copy of a December 30, 2003, letter from the Social Security Administration to him. The letter references his claim and addresses the amount his lawyer can charge him. The letter states that appellant’s past-due benefits are “$17,121.55 for 5/01 thru 12/03” and that his lawyer cannot charge him more than $4,000 or 25 percent, whichever is less.
Because $4,000 is less than 25 percent of $17,121.55, it appears that appellant would have received about $13,100 minus any costs that he agreed to pay his lawyer. Therefore, appellant’s claim against the Social Security Administration is a plausible source for most of the $13,700 in cash hidden in the foot massager. There is, however, a 40-month gap between the letter and date of the seizure and no documents that connect the cash seized to the payment from the Social Security Administration.
2. $6,008 in metal box
Appellant contends that the $6,008 found in the metal box represented $3,735.52 obtained from an insurance claim and the balance of approximately $2,200 came from the Union Bank of California account. To support this contention, appellant refers to a document that appears to relate to an insurance claim made for the loss of a vehicle as the result of a collision. The document references a loss incident date of March 11, 2006, a claim submitted date of March 16, 2006, and lists appellant as both the insured and the owner. The document states that “AAA Insurance has conducted an appraisal of your 1996 Oldsmobile Aurora 4 Door Sedan” and that the recommended settlement amount for the vehicle loss is $3,735.52.
The insurance settlement and the account at Union Bank of California are plausible sources of the cash found in the metal box. The documents presented by appellant, however, do not identify the source of the money used to purchase the vehicle.
3. $3,265 in envelope
Appellant asserts that the $3,265 found behind the headboard “was in an envelope, sealed and marked distinctly on the outside of that envelope as ‘bill money’, [and] was to have been picked up by the officials representing … the new owners of the property [that was appellant’s residence], and whose representatives had not arrived prior to the occurrence referred to herewith, and to whom the monies in that envelope, $3,265.00 dollars, is owed and to whom it should be remitted immediately by the Court upon the finding for [appellant].…”
Appellant, although he identified the intended use of the cash in the envelope, has not identified the source of that cash.
4. $390 in Social Security envelope
Appellant contends that at the time of his arrest he had $390 in an envelope that had held his Social Security check, which he had just received that day in the United States mail. He further contends that he had cashed the check at the same branch of the Union Bank of California that he had used for years.
Appellant argues the Social Security Administration would not have sent him money for drugs and, therefore, the money in the envelope from the Social Security Administration was drug-free.
5. $118 in wallet
Appellant’s opening brief mentions $118 in cash taken from his wallet, but does not explain its source.
III. Forfeiture and the Probable Cause Requirement
California statute provides that certain assets used in the illicit drug trade are subject to civil forfeiture. Specifically, Health and Safety Code section 11470, subdivision (f) provides that assets subject to forfeiture include:
“All moneys [or] negotiable instruments … furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys [or] negotiable instruments … used or intended to be used to facilitate any violation of [specified drug laws], insofar as the offense involves manufacture, sale, possession for sale, offer for sale, or offer to manufacture, or conspiracy to commit at least one of those offenses, if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property, or the filing of a petition under this chapter, or the issuance of an order of forfeiture of the property, whichever comes first.”
The contentions set forth in the parties’ appellate briefs raise the question whether the People presented enough evidence to justify the forfeiture of the cash and the cashier’s check under the foregoing provision of Health and Safety Code section 11470.
A. Legal Standard Applicable to Defaults
Subdivision (b)(1) of Health and Safety Code section 11488.5 sets forth the standard that applies to civil forfeiture when no claim is filed opposing the forfeiture:
“If at the end of the time set forth in subdivision (a) there is no claim on file, the court, upon motion, shall declare the property seized or subject to forfeiture pursuant to subdivisions (a) to (g), inclusive, of Section 11470 forfeited to the state. In moving for a default judgment pursuant to this subdivision, the state or local governmental entity shall be required to establish a prima facie case in support of its petition for forfeiture.” (Italics added.)
The mandatory requirement concerning a “prima facie case” has been interpreted to mean that the People must make a threshold showing of probable cause. (People v. $47,050 (1993) 17 Cal.App.4th 1319, 1322.) To establish a prima facie case of probable cause, “the government must establish some nexus between the seized funds and a narcotics transaction. [Citation.]” (Id. at p. 1323.)
We note that appellant’s opening brief cites this case and the briefs of both parties reference the probable cause requirement.
In People v. $48,715 United States Currency (1997) 58 Cal.App.4th 1507, we assumed that the trial court’s probable cause determination was subject to de novo review. (Id. at p. 1518.) In this case, we need not decide the applicable standard of review because the result we reach will be the same regardless of the standard of review. (See People v. $47,050, supra, 17 Cal.App.4th at p. 1323, fn. 4 [not resolving whether de novo review or the California substantial evidence standard applies to a determination that a prima facie case of probable cause was established].) Here, Zaragoza’s declaration and documents from appellant’s criminal conviction were the only items presented to meet the probable cause requirement. We will assume the trial court accepted the truth of the facts set forth in those documents, which means the critical question is whether the inferences drawn from those facts are strong enough to create probable cause.
B. Prima Facie Case Regarding the $23,491 in Cash
Zaragoza’s declaration asserts that appellant’s minor daughter admitted that (1) she had seen her father weigh and prepare small drug-filled bags, (2) she had been present when strangers came to their home and gave her father money in exchange for the plastic bags of drugs, (3) the currency seized from her room had been hidden there by her father, (4) all of the money belonged to her father, and (5) her father earned the money by selling drugs.
The declaration uses the terms “currency,” “money” and “cash” to refer to the $23,491 of cash seized. The cashier’s check is discussed separately.
These admissions are sufficient to establish probable cause that a link (nexus) exists between drug sales and the $23,491 of United States currency seized from the bedroom. (See Health & Saf. Code, § 11470, subd. (f) [“proceeds traceable to” an exchange for a controlled substance are subject to forfeiture].) Accordingly, the portion of the default judgment concerning the forfeiture of the cash has sufficient support in the record.
C. Prima Facie Case Regarding the Cashier’s Check
1. Showing made to the trial court
Zaragoza’s declaration did not include anything from his interview with Murillo or appellant’s minor daughter about the cashier’s check. The declaration does include appellant’s statements to Zaragoza that (1) his deceased wife had never been employed, (2) she had received a large check from the Social Security Administration for “back pay,” (3) the money from the check was deposited into a savings account, and (4) the money was his daughter’s inheritance. The declaration asserts that appellant told Zaragoza that he withdrew the money so that the Social Security Administration would not discover that he had savings over $2,000 and discontinue his Social Security benefits.
Zaragoza set forth his reasoning for the forfeiture of the cashier’s check as follows: “Because [appellant’s] explanation for the cashier’s check lacked credibility, I formed the opinion that cashier’s check also represented proceeds from the sale of illegal drugs.”
2. Analysis of showing
Initially, we note that the expert opinion of Zaragoza regarding the source of the funds represented by the cashier’s check is not, by itself, sufficient to meet the probable cause threshold. In People v. $47,050, the court indicated that an expert opinion that the seized cash was to be used to purchase narcotics, though admissible evidence, would not satisfy the probable cause requirement without an adequate factual foundation. (People v. $47,050, supra, 17 Cal.App.4th at p. 1325.) In short, an opinion is only as good as the facts upon which it is based.
In this case, the cashier’s check from Union Bank of California includes an amount, a date, and the names of the payee and remitter. The amount was $10,278.68, the date of the check was December 15, 2006, and appellant was both the payee and the remitter. This information can be used to frame the question regarding probable cause. Specifically, was there a showing of probable cause that by December 15, 2006, appellant had accumulated $10,278.68 in profits from his sales of methamphetamine and converted that cash profit into a cashier’s check? The answer to this question is “No.”
First, no evidence was presented (a) regarding the amount of profit that appellant’s methamphetamine sales would have generated prior to December 15, 2006, and (b) indicating that profit would have exceeded the amount of cash seized. Second, and more importantly, there is no evidence of a link between the cashier’s check and appellant’s drug trade. No evidence was presented regarding the type or source of the funds used to obtain the cashier’s check. If any investigation was conducted on that point, the results were not presented to the trial court. Furthermore, there was no evidence that appellant converted the proceeds from his drug trade to a cashier’s check. Murillo and appellant’s daughter were forthcoming about the source of the cash, but no evidence was presented regarding what they said, if anything, about the cashier’s check and its source of funds.
Based on the foregoing, we conclude that a prima facie showing of probable cause was not made with respect to the cashier’s check because there was no showing that the funds were traceable proceeds of drug transactions. This gap—the absence of a link between the drug sales and the check—requires the reversal of the portion of the default judgment concerning the forfeiture of the cashier’s check.
IV. Setting Aside a Default Judgment
Appellant’s opening brief contends that “[c]ourts have reputable powers to set aside a default judgment if the moving party shows good cause, takes quick action to correct the default, and has a meritorious defense. [Citations.]”
In this case, appellant has not demonstrated that he is entitled to have the default judgment set aside. First, there is no indication in the appellate record that appellant filed a motion for relief in the trial court. (See Code Civ. Proc., § 473 [motions for, among others things, relief from a default judgment].) Second, it necessarily follows that appellant did not take timely action in the trial court to correct the default judgment filed in March 2008.
Therefore, appellant has not demonstrated that this court should set aside or vacate the default judgment.
DISPOSITION
The judgment is affirmed with respect to the United States currency and reversed as to the forfeiture of the $10,278.68 cashier’s check. To correct a typographical error regarding the amount of United States currency forfeited, the trial court is directed to enter a new judgment that states: “It is hereby ordered that the $23,491.00 in United States currency is forfeited pursuant to Health and Safety Code section 11470.”
WE CONCUR: WISEMAN, Acting P.J., KANE, J.