Proof of Service: THE PEOPLE OF THE STATE OF CALIFORNIA vs. JOSE LUIS NUNEZ CARRILLO, ET AL

On August 07, 2020 a Proof of Service was filed involving a dispute between People Of The County Of San Mateo, and Carrillo, Jose Luis Nunez, for (05) Unlimited Asset Forfeiture in the District Court of San Mateo County.

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1 Isaac Safier (SBN 277728)
Law Office of Rebecca Feigelson
2 345 Franklin Street, Law Chambers Building
3 San Francisco, CA 94102
Tel: 415-967-0125
4 Fax: 415-789-4305
Email: IsaacSafier@gmail.com
5
6 Attorney for Claimants
JOSE LUIS NUNEZ CARRILLO; and
7 MA ERNESTINA PEREDA DE NUNEZ
8
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO– UNLIMITED JURISDICTION
10
_____________________________________ )
11 THE PEOPLE OF THE STATE OF )
12 CALIFORNIA )
Petitioner, ) No. 20-CIV-03324
13 )
14 Vs. )
) NOTICE OF MOTION AND NON-
15 SEVENTY TWO THOUSAND DOLLARS ) STATUTORY MOTION FOR
($72,000.00), ) RETURN OF PROPERTY;
16 MEMORANDUM OF POINTS AND
)
17 AUTHORITIES
Respondent, )
18 ____________________________________ )
)
19 JOSE LUIS NUNEZ CARRILLO (Erroneously)
20 filed as CARILLO); and )
MA ERNESTINA PEREDA DE NUNEZ, )
21 )
22 Interested Parties/Claimants )
)
23
24
25
TO THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY
26
27 SAN MATEO COUNTY, STATE OF CALIFORNIA: PLEASE TAKE NOTICE that on the

28 date and time stated above, or as soon thereafter as the matter may be heard, Claimants JOSE
29
LUIS NUNEZ CARRILLO (Erroneously filed as CARILLO, herein “Jose”); and MA
30
31 ERNESTINA PEREDA DE NUNEZ (herein “Ernestina”), through counsel, will and hereby

NON-STATUTORY MOTION TO RETURN PROPERTY - 1
Case No.: 20-CIV-03324
1 move the court for an order returning property seized; $72,000.00 U.S. Currency.
2
This motion will be based on this notice of motion, memorandum of points and
3
authorities and argument, attached declarations, served and filed herewith, on such supplemental
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5 memoranda of points and authorities as may be filed with the court or stated orally at the
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conclusion of the hearing, on all the papers and records on file in this action, and on such oral
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and documentary evidence as may be presented at the hearing hereby requested in this matter.
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9
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FACTUAL BACKGROUND
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12
13 On July 8, 2020, agents of the San Mateo County Narcotics Task Force executed a
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search warrant on 515 Warrington Ave, Redwood City, San Mateo County, California (the
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“Premises”). The search warrant was issued on July 1, 2020, by Hon. Judge Sean Dabel, and
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17 commanded the search of property and vehicles relating to suspect Luis Eduardo Nunez
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Pereda (“Luis”).
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The Premises is a 4 bedroom, 2 bathroom 1,270 square foot detached single family
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21 home. It was occupied by Jose Luis Nunez Carrillo (“Jose”), Ma Ernestina Pereda De Nunez
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(“Ernestina”), the Claimants, and their 25 year old son Luis, the suspect (Declaration of Ma
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Ernestina Pereda de Nunez, ¶4).
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25 Luis was charged a four-count felony complaint (CASE NO. #20SF010616-A) based
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in part on items found during the search of his family’s home on July 8, 2020. The charges
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included 1) Possession of A Controlled Substance With Firearm in violation of
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29 HS11370.1(a), a Felony, 2) Possession For Sale Of A Controlled Substance in violation of
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HS11351, a Felony, 3) Possession Of Metal Knuckles in violation of PC21810, a Felony, 4)
31

NON-STATUTORY MOTION TO RETURN PROPERTY - 2
Case No.: 20-CIV-03324
1 Possession of Fireworks Without Permit in violation of HS12677, Misdemeanor. The
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probable cause declaration stated that Luis was in possession of 5.4 grams of suspected
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cocaine, one digital scale, packaging material, US currency, and one semi-automatic
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5 handgun. On August 31, 2021, Luis entered a plea of guilty to count two, HS11351,
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Possession for Sale of A Controlled Substance, a Felony relating to the 5.4 grams of cocaine.
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Ernestina is a self-employed housekeeper. She is 53 years old. She came to the
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9 United States in 1989. Initially she worked at a factory, then started working at a restaurant,
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then at housekeeping agencies before starting as a self-employed housekeeper in 1998.
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(Declaration of Ma Ernestina Pereda de Nunez, ¶1-3). Jose is a self-employed gardener. He
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13 is 56 years old and also came to the United States in 1989. From 1989 to 2009 he worked at
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a landscaping company, then started working for himself in December 2009. (Declaration
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of Jose Luis Nunez Carrillo, ¶1-2).
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17 At the time of the search on July 8, 2020, Ernestina was the only person at the
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Premises. She complied with the search warrant and when asked, she stated that her son
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Luis's bedroom was to the back on the residence on the right side. According to the San
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21 Mateo County Narcotics Task Force Investigations Report in Case No. 20-51181, Officers
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first searched Luis’s Blue 2000 Chevrolet Truck, where they located 3.5 grams and .7 grams
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of white powdery substance, a firework, 4 sandwich baggies with marijuana and a digital
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25 scale.
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Officers then searched Luis’ bedroom, where they located small plastic ziplock
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baggies containing a white powdery substance in a small dresser by the door, 9mm ammo, a
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29 magazine for a pistol registered to Luis, and black metal knuckles. In a dresser next to Luis’
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bed in his room, officers located Luis’ wallet containing $325 in US currency in small
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NON-STATUTORY MOTION TO RETURN PROPERTY - 3
Case No.: 20-CIV-03324
1 denominations (1's, 5's, 10's and 20's). In the next two drawers down officers located $5,960
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in US currency (100's in one drawer and 50's and 20's in the next drawer). The total US
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currency found in the dresser in Luis’ room was $6,285. This U.S. currency is not claimed
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5 by Claimants.
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Officers then went on to search the garage next to the house. Officers located a
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handgun registered to Jose and associated ammunition. Officers then located a safe in the
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9 back right of the garage. Ernestina was asked for the combinations and provided them.
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Inside the safe, officers located three handguns lawfully registered to Jose. Officers also
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located a ring of keys belonging to Jose, documents with Ernestina and Jose’s names on
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13 them, such a boarding pass, and a set of 14 smaller white envelopes containing $5,000-
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6,000 each, totaling $72,000 U.S. Currency. Of these 14 smaller white envelopes, some
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were in a re-used blue priority mail envelope labelled “30 Tina” and others were in another
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17 re-used blue priority mail envelope. These priority mail envelopes had been sent to family
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members containing passports and were re-used to store the smaller white envelopes
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containing money. All the 14 smaller white envelopes found in the safe had writing on
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21 them written in Spanish language Pitman Shorthand (Secretarial Shorthand).
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The original 14 smaller white envelopes and one larger blue envelope were returned
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to Claimants’ residence but photos of several of them appeared in San Mateo County
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25 Narcotics Task Force production in response to a subpoena (Declaration of Ma Ernestina
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Pereda de Nunez, ¶8, Ex. C).
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An expert witness on Pitman Shorthand writing system has verified that the writing
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29 is Pitman Shorthand and has deciphered the writings made by Ernestina, confirming her
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transcriptions to Spanish are accurate (See Declaration of Expert on Pitman Shorthand,
31

NON-STATUTORY MOTION TO RETURN PROPERTY - 4
Case No.: 20-CIV-03324
1 ¶10).
2
Some of the smaller white envelopes had dates on them, ranging from 2012 to 2017,
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and were signed by “Tina”, short for “Ernestina”. This writing indicated the ownership of
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5 the U.S. Currency in each envelope. The date on each envelope indicated when the money
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was placed in the envelope (Declaration of Ma Ernestina Pereda de Nunez, ¶6-19). The
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dates this money was set aside was long before the illegal conduct in their son Luis’s case.
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9 The series dates on the seized U.S. Currency bills supports this. These are Ernestina and
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Jose’s savings from their lawful employment over the course of nearly a decade
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(Declaration of Jose Luis Nunez Carrillo, ¶8).
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13 Ernestina and Jose have a long and demonstratable history of providing gardening
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and housekeeping services to people in their community. Letters from their clients
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confirming the amount they each pay monthly are attached to their declarations, which are
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17 filed in support of this motion (Declaration of Jose Luis Nunez Carrillo, ¶7, Ex. A)
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(Declaration of Ma Ernestina Pereda de Nunez, ¶19, Ex. E).
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20
21 MEMORANDUM OF POINTS AND AUTHORITIES
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23 I. CLAIMANT CAN MOVE THE COURT FOR RETURN OF PROPERTY
REGARDLESS OF OTHER PROCEEDINGS.
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Claimants have not been charged with any crime.1 A person, other than defendant (in
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this case other than Luis), may move for return of property under Health & Safety Code
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28 Section 11488.4(g) – regardless of the pendency of other proceedings. The section states:
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30 1
Claimants have standing to challenge forfeiture under H&S 11488(c), which creates a presumption that the
person to whom a receipt for property was issued is the owner. Claimants each received receipts and notices of
31 seizure in this case.A claimant need only have a facially colorable interest in the proceedings to establish
standing. See People v. Superior Court (Plascencia), 126 Cal. Rptr. 2d 793, 810–11 (Cal. Ct. App. 2002).

NON-STATUTORY MOTION TO RETURN PROPERTY - 5
Case No.: 20-CIV-03324
1 Nothing contained in this chapter [Health & Safety Code Section 11469-11495] shall
preclude a person, other than a defendant, claiming an interest in property actually
2
seized from moving for a return of property if that person can show standing by
3 proving an interest in the property not assigned subsequent to the seizure or filing of
the forfeiture petition. Health & Safety Code Section 11488.4(g)2
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5
There is no authority for the police or any other government agency to retain
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7 possession of property which is not derived from drug offenses, was not intended to be used
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or was not used to facilitate a drug offense, or was not received in exchange for a controlled
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substance. Hence, the defendant may move for return of the property on the ground that there
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11 is no probable cause to believe that the property is forfeitable under Health & Safety Code §
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11470 and that it is not otherwise subject to forfeiture or destruction. (Health and Safety Code
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§11488.4(h).)
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According to the Court in Buker v. Superior Court, a demand for the return of
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currency can be made even while the underlying case is pending, if the currency is
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19 unnecessary for the trial. (Burker v. Superior Court (1972) 25 Cal.App.3d 1085.) Specifically,
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in Buker, the officers seized over $6,000 under a warrant because the money was allegedly
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related to drug sales. The court found the funds were "not necessary to prove guilt, (were) not
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23 contraband, and should not be retained for any legal reason." Id. at 1087. The case
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demonstrates the authority of the trial court to return property, as well as its duty to return it.
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2
In Cuevas v. Superior Court, the court addressed dicta of the Second District Court of Appeal in footnote 8 of
27 People v. Superior Court (Plascencia), 126 Cal. Rptr. 2d 793 (Cal. Ct. App. 2002) pertaining to 11488.4(g). The
28 claimant in Cuevas fileda motion to returnproperty aftertheunderlying criminal complaint was dismissed. The
trial court summarily denied the motion on the ground that the property “was subject to a civil forfeiture
29 proceeding” and, therefore, the trial court believed it lacked jurisdiction to rule on the motion.
The Fifth District
of the Court of Appeal reversed and found that claimant was entitled to move for return of property under
30 subdivision (g) of section 11488.4. The court explained: “There is no question as to petitioner's standing and his
motion should have been considered in its totality.” Cuevas v. Superior Court 165 Cal. Rptr. 3d 325, 339 (Cal.
31 Ct. App. 2013), as modified on denial of reh'g (Dec. 24, 2013). See also Ramirez v. Tulare Cty. Dist. Attorney's
Office, 215 Cal. Rptr. 3d 512, 524 (Cal. Ct. App. 2017).

NON-STATUTORY MOTION TO RETURN PROPERTY - 6
Case No.: 20-CIV-03324
1 The court also found that denying the release of property constituted an "abuse of discretion."
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Id. at 1090. A petitioner may bring a non-statutory motion for return of property seized by
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warrant or incident to arrest which was not introduced into evidence but remained in
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5 possession of the seizing officer. Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361,
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364–365. People v. Lamonte (1997) 53 Cal.App.4th 544, 549.
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9 Under the rules set forth in Gershenhorn, this Honorable Court has judicial control
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and authority to issue an order mandating immediate return of Claimants’ money, obtained by
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law enforcement with or without a warrant. Claimant is requesting an Order mandating the
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13 immediate return of the money, as a matter of law.
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15
In this case, police seized $72,000.00 U.S. Currency and allege with no factual basis
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17 that it was obtained through sale of controlled substance, in violation of Health and Safety
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Code § 11469 et seq. Even if the facts known to law enforcement at the time of the seizure
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supported forfeiture, the current facts available to the court should be considered in the
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21 analysis of whether the government has the requisite probable cause to continue to proceed
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with forfeiture. Although the People may assert that Claimant’s clearly documented cash
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savings are somehow related to the 5.4 grams of cocaine located in the areas of the Premises
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25 under control of their son, this does not square with the substantial evidence of prior lawful
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savings now offered to the court. The seized U.S. currency is the proceeds of years of hard
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work gardening and housekeeping by Claimants, and meticulously documented in Pitman
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29 shorthand system with dates and signatures.
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II. A COURT IN POSSESSION OF PROPERTY LEGALLY SEIZED UNDER A

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Case No.: 20-CIV-03324
1 WARRANT HAS AUTHORITY TO RETURN IT ON A SHOWING OF GOOD CAUSE.
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3 The Penal Code provides for return or delivery of property seized under warrant. A
4 court in possession of property legally seized under a search warrant has authority to direct
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its delivery to the persons entitled to it on a showing of good cause. This authority is within
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7 the express power conferred by Penal Code section 1536 and is further within the scope of
8 the inherent power of the court to control and prevent the abuse of its process. Ensoniq Corp.
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v Superior Court (1998) 65 CA4th 1537 at 1547; Buker v Superior Court (1972) 25 CA3d
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11 1085. In Buker v. Superior Court, Supra, 25 Cal.App.3d 1085, the court held that section
12 1536 empowered the superior court to entertain a summary proceeding by ‘nonstatutory’
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motion for the return, on good cause shown, of property (cash) legally seized under a search
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15 warrant, adding moreover that such power was ‘within the scope of the inherent power of the
16 court to control and prevent the abuse of its process.’ (25 Cal.App.3d at p. 1089.) People v.
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Superior Court (1972) 28 Cal.App.3d 600. The same rule applies when property is seized
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19 without a warrant. See Gershenhorn v Superior Court (1964) 227 CA2d 361 at 366. It is
20 clear that section 1536 may provide the jurisdictional basis for a nonstatutory motion for
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release of property seized under a search warrant.
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23 Section 1536 was enacted in order to provide controls over those officials in
24 possession of property seized pursuant to a search warrant . . ." People v. Von Villas (1992) 10
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Cal. App. 4th 201, 239. Section 1536 provides that property seized under a search warrant
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27 ‘must be retained by the officer in his custody, subject to the order of the court to which he is
28 required to return the proceedings before him, or of any other court in which the offense in
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respect to which the property or things taken is triable.’ People v. Superior Court (1972) 28
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31 Cal.App.3d 600.

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Case No.: 20-CIV-03324
1
III. PETITIONER CAN ESTABLISH GOOD CAUSE:
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Jose and Ernestina earned the seized currency by doing manual labor. The U.S.
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5 Currency that they accumulated between 2012-2017 and that was seized in this case does not
6 have any connection to their 25 year old son’s illegal activities. A family’s right to their
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personal money does not vanish the moment one family member is convicted of a crime.
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9 California courts have rejected the idea that “forfeitability spreads like a disease” which infects
10 untainted funds when commingled with tainted funds in a bank account. People v. $9,632.50
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U.S. Currency, 64 Cal. App. 4th 163, 169 (1998). “[N]othing in the California forfeiture scheme
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13 or the cases interpreting it suggests the Legislature intended untainted assets (whether belonging
14 to a third person or person involved in drug activity) to be subject to forfeiture simply because
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they were in proximity with forfeitable assets.” Id. at 172 (emphasis in original); Here, the basis
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17 for forfeiture is even more tenuous because the seized $72,000.00 was documented in envelopes
18 signed by Ernestina indicating ownership by her and Jose, and found in a safe not under the
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control of defendant Luis. Letters from their clients attached as exhibits to their declarations
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21 show their law history of self employment in their community (Declaration of Jose Luis
22 Nunez Carrillo, ¶7, Ex. A) (Declaration of Ma Ernestina Pereda de Nunez, ¶19, Ex. E).
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24
25 VII. CASH CANNOT BE RETAINED BASED ON SOME “COLOR” UPON
26 WHICH IT COULD BE ADMITTED INTO EVIDENCE.
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28
29 The courts have consistently held that it is an abuse of discretion to refuse to return
30 seized currency based on some “color” upon which it could be admitted in evidence. The
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court in Stern v. Superior Court, 76 Cal.App.2d 772, 782 [174 P.2d 34], said: “It might be

NON-STATUTORY MOTION TO RETURN PROPERTY - 9
Case No.: 20-CIV-03324
1 remarked that the fact that petitioners had $50,000 in currency in the denominations already
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shown in a safe deposit box can be proved at the trial ... by the person or persons who
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actually took the currency from the box. Exhibiting it to the jury is not necessary to prove the
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5 fact, ...” The trial court can also use a stipulation that currency in the amount seized was
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found in and taken from the residence by the officers executing the search warrant, which
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eliminates the need of any evidence to prove the stipulated fact. See People v. Gonzales, 262
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9 Cal.App.2d 286, 290. Buker v. Superior Court (1972) 25 Cal.App.3d 1085, 1089–1090. The
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court may not refuse to return legal property to a convicted person to deter possible future
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crime. People v. Lamonte (1997) 53 Cal.App.4th 544, 553.
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13
14 VIII. CASH IS NOT CONTRABAND.
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16 Cash is not contraband, and the law does not prohibit its possession. Contraband is defined as
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goods which are expressly forbidden. Even property used to commit a crime is not
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19 necessarily contraband. Porno, Inc. v. Municipal Court (1973) 33 Cal.App.3d 122.
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21
CONCLUSION
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24 Claimants are entitled to move for return of property despite the pendency of other
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actions, including a pending civil forfeiture action. The court has statutory authority to return
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27 this money if there is no longer probable cause to believe the seized $72,000.00 U.S.
28 Currency is forfeitable under H&S Section 11488.4(g) and it has non-statutory inherent
29
authority to return this money if there is good cause per the Gershenhorn, Buker and Ensoniq
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31 cases. Claimants present substantial evidence that the seized money was their lawful

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Case No.: 20-CIV-03324
1 earnings from lawful employment, which supports both lack of probable cause and good
2
cause to return the money. As such, Claimants respectfully request that this court order the
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return the $72,000.00 U.S. Currency seized in this case to them via their undersigned
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5 counsel.
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Dated: 3/28/2022 Respectfully submitted,
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______________________
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Isaac Safier
12 Attorney for Claimants
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NON-STATUTORY MOTION TO RETURN PROPERTY - 11
Case No.: 20-CIV-03324

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Foiles, Robert D Track Judge’s New Case

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Document Filed Date

April 28, 2022

Case Filing Date

August 07, 2020

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Proof of Service: THE PEOPLE OF THE STATE OF CALIFORNIA vs. JOSE LUIS NUNEZ CARRILLO, ET AL

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