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Court of Appeal, Third District, California.

Lewis Lynn HOLT, Petitioner, v. Tom L. KELLY, Sheriff, county of Trinity, Respondent.

Civ. 15579.

Decided: March 14, 1977

John F. Moulds, III, Sacramento, for petitioner. Evelle J. Younger, Atty. Gen. by Carol Bartlett Hogan, Sacramento, for respondent.

Our inquiry in this case is occasioned by the failure of the Trinity County Sheriff's Department to follow statutory requirements with respect to handling property of persons in custody. (Pen.Code, § 4003; Gov.Code, § 26640.)

On November 27, 1974, petitioner Lewis Lynn Holt filed a petition for a writ of mandamus in the Trinity County Superior Court, seeking the return of 32 items of property allegedly taken from him by the respondent Trinity County Sheriff at the time of his arrest. The property, all individually itemized and valued, allegedly consisted of a gold wedding ring, a Timex wristwatch A butane lighter, a pocket knife, a silver belt buckle, four fishing reels, other fishing equipment, and a number of carpenter's hand tools.

The trial court sustained a demurrer to the petition with leave to amend. This court thereafter denied petitioner's ‘Petition for Removal,’ filed September 26, 1975, on the ground that he had failed to amend. (3 Civ. 15455.) Petitioner then on November 5, 1975, filed a more extensive ‘Petition for Removal’ in the California Supreme Court, which transferred the proceeding back to us on November 25, 1975 with directions to issue an alternative writ of mandate. We did so, appointed counsel for petitioner, and on April 16, 1976, appointed the Honorable James E. Kleaver, Judge of the Siskiyou County Seperior Court, referee to take evidence for us.

The referee heard testimony on July 16 and August 2, 1976, and found that all of the property claimed by petitioner was in fact taken from him by the sheriff's department, that it was petitioner's property, that it had a value of $500, and that none of it had been returned to him.

Both sides have submitted briefs in response to the referee's report. We must now accept or reject the findings and determine their legal consequences.


The appointment of a referee without consent of the parties is authorized by Code of Civil Procedure section 639. That section provides for a special reference, inter alia, ‘When it is necessary for the information of the court in a special proceeding.’ (Code Civ.Proc., § 639, subd. 4.) Since appellate courts are not equipped to take evidence, a reference is essential when the determination of controverted issues of fact becomes necessary in an original proceeding. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 484, p. 4439.)

In contrast to a general reference, which is permitted only by consent of the parties (Code Civ.Proc., §§ 638, subd. 1, 644) a special referee's findings are not binding, and are properly characterized as advisory only. (Dynair Electronics, Inc. v. Video Cable, Inc. (1976) 55 Cal.App.3d 11, 20, 127 Cal.Rptr. 268; Ellsworth v. Ellsworth (1954) 42 Cal.2d 719, 722, 269 P.2d 3.) Nonetheless, ‘[w]hen the findings of a referee are based in substantial part on the credibility of witnesses, such findings, although not binding on this court, are entitled to great weight in view of the referee's unique opportunity to observe the demeanor of the witnesses when they testified.’ (In re Rosoto (1974) 10 Cal.3d 939, 946, 112 Cal.Rptr. 641, 645, 519 P.2d 1065, 1069; see also People v. Acosta (1969) 71 Cal.2d 683, 687, 78 Cal.Rptr. 864, 456 P.2d 136 and cases cited.)

Accordingly, we must make an independent review of the record to determine whether the findings are supported by and correctly interpret the evidence. (See In re Mitchell (1968) 68 Cal.2d 258, 262–263, 65 Cal.Rptr. 897, 437 P.2d 289; In re Thornton (1966) 64 Cal.2d 484, 485, 50 Cal.Rptr. 556, 413 P.2d 156; In re Allen (1956) 47 Cal.2d 55, 57, 301 P.2d 577.)


On January 2, 1974, in response to a Humboldt newspaper advertisement, petitioner was hired by Alta May Heesacker to care for her disabled father, Nicholas Tompkin. She drove petitioner to the Tompkin residence in Ruth, California, and spent two days showing him the premises. The day after her departure petitioner severed the telephone wires, stole Tompkin's automobile, money, and a .22 caliber rifle, and drove to Crescent City.1 He abandoned the vehicle in Crescent City and took a bus to McKinleyville (Humboldt County), where he was arrested on January 9, 1974, at a mobile home of a friend.

The arresting officer, Trinity County Sheriff's Deputy Donald Osborne, testified that he took petitioner to a motel to pick up a foot locker trunk. At petitioner's request, Osborne removed a shirt and a pair of trousers from the trunk and gave them to petitioner's friend. The trunk was then placed in the patrol car, and Osborne delivered petitioner (but not the trunk or its contents) to the Humboldt County jail overnight. In accordance with what was then normal procedure (and has since been changed), Osborne did not give petitioner a receipt for the property.

The next day Osborne picked up petitioner at the Humboldt jail, and the two drove to Crescent City to locate the stolen automobile and have it towed away. They then drove to Weaverville in Trinity County where petitioner and the trunk were delivered to the Trinity County jail. The jail booking officer, Carl Beach, filled out by typewriter a ‘Trinity County Jail Arrest Record’ form in triplicate. In a space at the bottom of the form designated ‘Property Receipt,’ he typed ‘No money; one billfold and contents; one wristwatch, Whit [sic] metal, Times [sic], Plastic type band; One pair fingernail clippers, two keys on a key ring.’ Hand printed beneath this appears ‘1-Ft. Locker—Contents—(Clothes—tools, hand tools, & Rifles) C.B.’ The word ‘Rifles' is crossed out, but readable, and the initials C.B. presumably refer to Carl Beach.

The two carbon copies do not fully correspond with the original, thus indicating that some of the material on the original was added after the three were separated. In any event, none of these documents were given to petitioner, nor was he given any other form of receipt.

No inventory was ever made of the contents of the trunk. Osborne testified that he recalled seeing ‘Clothing, the 22 rifle, some tools like a hammer, maybe a saw, pair of pliers, screwdriver, possibly a tape, you know, measuring tape, some license plates,’ he did not recall any fishing gear. Beach could not recall the contents of the trunk when it was first received. But on April 25, 1974, the day petitioner was convicted, he took from the trunk everything except the clothing and toilet articles, gave it with such items to a friend of petitioner, and put the removed items into a cardboard box about 10″x10″x10″. Twenty months later, after this action was filed, Beach tried to recall which items claimed by petitioner were in the cardboard box. His declaration recalls:

1 fly fishing reel

1 closed face spinning reel

1 bait casting reel

20 assorted fishing lures (flies)—Not sure how many.

1 box 30–06 rifle shells—Not sure how many.

1 100-foot steel measuring tape

1 16-foot steel measuring tape

1 16-oz. claw hammer

1 pair side cutters

1 pair metal snips

4 pair vicegrips (not sure how many pairs)

1 Yankee screwdriver

1 staple gun

3 chisels

As for the other items on petitioner's list, Beach testified that to the best of his knowledge, they were never in the trunk.

The Beach declaration also states that all but the closed face spinning reel, the fishing lures and the rifle shells were ‘apparently . . . misplaced’ by the next day.2 This is probably because on the next day, April 26, the contents of the box were given to Heesacker by Deputy Laffranchini. She testified: ‘I picked up a little clock that belonged to my mother and various things, scissors, tweezers. I recognized everything that was in that little box.’ She said there was a ‘closed-in type’ fishing reel, but none of the other items on Deputy Beach's list. ‘It was just little junk items. There were no tools to speak of. There was probably a little two-bit pair of pliers but just little things [petitioner] had picked up, more out of the bedroom, the shop.’

Laffranchini stated in a December 31, 1975 declaration that he gave Heesacker the closed face spinning reel, the rifle shells, and the fishing lures. At the hearing he added his belief that there was also a screwdriver and a small pair of pliers. He specifically did not recall the small clock mentioned by Heesacker.

Osborne also testified that the trunk weighed ‘maybe thirty or forty pounds,’ but added, ‘Don't hold me to that, though.’ He said he was reasonably sure that some of the items on petitioner's list were not in the trunk, but qualified his statements on specific items by saying he didn't recall seeing them in the trunk, or ‘I think I would have noticed’ if they had been there. He said ‘I could reasonably say there was no watch there . . .’ but also said he didn't remember whether petitioner was wearing a watch.

Beach also testified that ‘sometime after the stuff had been placed in the cardboard box and after Mr. Holt had been transferred from the Trinity County Jail,’ he gave petitioner's Timex watch to Undersheriff Ted Laag, to be mailed to petitioner in state prison. Laag did not testify, but in an earlier declaration stated that he ‘transmitted’ it to ‘the place of petitioner's confinement.’ Petitioner testified he had never received it, also that at the time of booking the gold wedding ring was placed along with the keys (and presumably the watch) in a manila envelope separate from the trunk.

In contrast to the often contradictory recollections of the respondent's witnesses, petitioner gave specific testimony as to the description, value, and place and date of acquisition of each of the items claimed. He testified that he was a member of the carpenters union, and that he used the carpenter's tools in his trade. The vague and sometimes confused testimony of the officers is no match for petitioner's detailed and specific evidence. This is precisely the situation sought to be avoided by the requirement for a receipt in Penal Code section 4003. By failing to give a detailed receipt, the sheriff's department rendered itself virtually defenseless against claims of this kind. We have carefully considered the attacks of respondent on the referee's findings and his claim that the items in the trunk were stolen by petitioner from Tompkin. While the latter is certainly plausible, the weight to which the referee's findings are entitled, and our own analysis of the evidence, have led us to adopt the referee's findings as our own.


There remains the question of the proper disposition of the petition. The original petition seeks the return of the property ‘or its value.’ In the replication to the alternative writ of mandate, counsel for petitioner requests an order directing that petitioner ‘be compensated’ for the missing property.3

Both parties apparently assume that the statute governing this case is Penal Code section 1408, which requires notice to the person from whom property is taken and an opportunity to be heard before its delivery to its owner; they fault the sheriff for failing to follow it. That section, however, only governs property which comes within Penal Code section 1407, i. e., ‘property, alleged to have been stolen or embezzled . . ..’ (Emphasis added.) Section 1408 also makes it clear that the allegation must be part of a complaint or criminal charge, for it speaks of ‘the magistrate before whom the complaint is laid, or who examines the charge against the person accused of stealing or embezzling it . . ..’ (Emphasis added.) (See also Pen.Code, §§ 1409, 1410.)

Petitioner was never charged with having stolen or embezzled the claimed property. He was charged with and convicted of theft of a vehicle (Veh.Code, § 10851) and theft of a firearm (Pen.Code, § 487). Nor is there any indication in the record that Tompkin (or Heesacker) ever made ‘application’ for its return. (Pen.Code, § 1408.) Under such circumstances, section 1408 does not apply. As above noted, the applicable statutes are Penal Code section 4003 and Government Code section 26640.

Although Penal Code section 4003 discusses the taking of property from prisoners, it does not provide for the return of such property upon release;4 such a provision is contained in Government Code section 26640.5 But to our knowledge no statute provides for monetary compensation for failure to return property.6

Mandamus lies ‘to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station.’ (Code Civ.Proc., § 1085.) Since there is no property in the sheriff's possession that we can order restored to petitioner and since there is no specifically enjoined statutory duty to pay money in lieu of lost property mandamus is both a useless and an inappropriate remedy. (See Northrup v. Haynes (1936) 15 Cal.App.2d 665, 59 P.2d 1056; Coombs v. Smith (1936) 17 Cal.App.2d 454, 62 P.2d 380; Elevator Operators, etc., Union v. Newman (1947) 30 Cal.2d 799, 808, 186 P.2d 1; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 74, p. 3850.) Petitioner must look to his right to damages for conversion, and consequently to the Tort Claims Act (Gov.Code, § 820 et seq.).

Government Code sections 911.2 and 950.2 require as a prerequisite to a damage suit against the respondent sferiff that a claim be presented within 100 days after the accrual of the cause of action. Government Code section 911.4 permits the filing of an application for a late claim ‘within a reasonable time not to exceed one year after the accrual of the cause of action.’ There being no pleading or proof of compliance with these claim statutes, no money judgment can be awarded. (Cf. Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 113 Cal.Rptr. 102, 520 P.2d 726.)

Petitioner cannot alter this result by stating his remedy in inverse condemnation terms. The recent case of Eli v. State of California (1975) 46 Cal.App.3d 233, 236, 120 Cal.Rptr. 63, with which we agree, holds that inverse condemnation does not lie where prison officials fail to return property belonging to an inmate. The opinion states: ‘Although the loss of appellant's property results indirectly from the obviously public purpose of establishing and administering correctional facilities, it in no way relates to either the planning of the prison or its use as a public improvement. That loss resulted, rather, from careless (possibly wilful) error of minor public employees in routine day to day operation of the prison system, rather than from any defect in the planned construction or operation of that system. At most, as apparently recognized by the board of control, it gives rise to an action for conversion.’ (46 Cal.App.3d at p. 236, 120 Cal.Rptr. at p. 64.)

The alternative writ of mandate is discharged and the peremptory writ is denied.


1.  We take judicial notice (Evid.Code, § 452) of the record in 3 Crim. 7586, the appeal from the conviction for these acts. The opinion affirming the conviction was not published.

2.  ‘Misplacing’ property apparently occurred in other unrelated instances. The 1975–1976 Grand Jury criticized the Sheriff for ‘laxity in accounting for items of property obtained from prisoners or during the course of investigation,’ citing two specific examples. (Report of Trinity County Grand Jury for 1975–1976, p. 15.)

3.  Petitioner concedes that when the petition was filed the sheriff did not have and has not since had any of the personal property in his possession.

4.  Section 2085, which applies only to the State Department of Corrections and consequently not to this case, states, ‘The department shall keep a correct account of all money and valuables upon the prisoner when delivered at the prison, and shall pay the amount, or the proceeds thereof, or return the same to the prisoner when discharged.’

5.  Government Code section 26640 reads as follows:‘The sheriff shall take charge of, safely keep, and keep a correct account of, all money and valuables found on each prisoner when delivered at the county jail. Except when otherwise ordered by a court of competent jurisdiction, the sheriff shall pay such money or sums therefrom and deliver such valuables or portions thereof as the prisoner directs and shall pay and deliver all the remainder of his money and valuables to the prisoner or to his order upon his release from the jail or to his legal representative in case of his death or insanity.’

6.  On the contrary, government Code section 844.6 gives a public entity (but not a public employee) immunity for injury or damage to property (see Gov.Code, § 810.8) of a prisoner. No public entity is a party to this proceeding.

PARAS, Associate Justice.

PUGLIA, P. J., and FRIEDMAN, J., concur.