I would grant the writ. The fourth amended complaint fails to state a cause of action, and therefore, to avoid a needless trial, the demurrer should have been sustained.
I adhere to the views expressed in People v. Bianco (2001) 93 Cal.App.4th 748 [113 Cal.Rptr.2d 392], and in my concurrence in People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1447-1448 [7 Cal.Rptr.3d 226] (Tilehkooh), that the United States Congress should reconsider its refusal to amend the federal drug laws to make reasonable accommodation for the 13 states that have enacted some form of compassionate use exception to their penal codes.1
The People of California, in exercising their right of initiative, passed the Compassionate Use Act (the CUA) allowing the use of marijuana under physician supervision when it is medically effective, but Congress has not chosen to enact such a law and the United States Supreme Court has held that even such narrow usage obstructs federal law. (Gonzales v. Raich (2005) 545 U.S. 1 [162 L.Ed.2d 1, 125 S.Ct. 2195] (Raich).)
*741As I stated in my concurrence in Tilehkooh, and as is pointed out in City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656] (Garden Grove), peace officers swear to uphold the Constitution and laws of both California and the United States. (Tilehkooh, supra, 113 Cal.App.4th at pp. 1447-1448 (conc. opn. of Morrison, J.); Garden Grove, supra, 157 Cal.App.4th at p. 391, fn. 15.) Imposing civil liability for an officer who complies with federal law will lead to further confusion surrounding medical marijuana. Judges take the same oath, and the courts should not encourage illegal acts.
Under the laws of the United States, as interpreted by Raich, the only effect of the CUA is as its terms state: It provides a defense to California criminal charges. (See Ross v. Raging Wire Telecommunications, Inc. (2008) 42 Cal.4th 920, 928-929 [70 Cal.Rptr.3d 382, 174 P.3d 200] (Ross).) It does not make marijuana “legal” in any sense.
In this case the CUA is not raised as a shield against criminal charges; it is used as a sword in an attempt to impose civil liability against a peace officer. Allowing this suit to proceed exceeds the proper scope of the CUA, frustrates federal law, requires California courts to validate illegal conduct and needlessly complicates the work of law enforcement. Therefore, I would issue a peremptory writ of mandate.
A.
It is illegal under the federal Controlled Substances Act (CSA; 21 U.S.C. § 801 et seq.) for any private person to possess marijuana. (21 U.S.C.A. §§ 812, schedule I(c)(10), 844(a); see County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 811-812 [81 Cal.Rptr.3d 461] (NORML).) This applies to medical marijuana. (Raich, supra, 545 U.S. 1.)
Because of the perceived minor nature of marijuana as compared to other drugs and other crimes generally, federal law enforcement agencies rarely investigate or seek prosecution for people who simply possess marijuana. This has led many people and some courts to assume there is no federal interest in preventing marijuana possession, or at least, to act as if that were the case. But such a view can only be based on a crabbed and unfair reading of Raich, which held that Congress could properly conclude that allowing “home-consumed marijuana outside federal control would . . . affect price and market conditions,” and there was a “likelihood that the high demand in the interstate market will draw [homegrown] marijuana into that market.” (Raich, supra, 545 U.S. at p. 19.) Raich invoked the supremacy clause to rebut a claim that compliance with the CUA took such conduct beyond the reach of Congress. (545 U.S. at p. 29.) “[T]hat the California exemptions will have a *742significant impact on both the supply and demand sides of the market for marijuana ... is readily apparent.” (Id. at p. 30.) “The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.” (Id. at p. 31.)
Therefore, under Raich, marijuana, even if grown in the backyards of very ill Californians acting on the advice of their doctors, is illegal. Fostering the cultivation of marijuana in California, regardless of its intended purpose, violates federal law. I disagree with cases holding to the contrary. (E.g., NORML, supra, 165 Cal.App.4th at pp. 818-822; Garden Grove, supra, 157 Cal.App.4th at pp. 380-386.)
The point where Garden Grove goes astray is when it pronounces the possession of marijuana under the CUA “was legal under state law, but illegal under federal law.” (Garden Grove, supra, 157 Cal.App.4th at p. 377.) The marijuana was not “legal” under state law, because California cannot make “legal” that which Congress makes illegal. Citing People v. Mower (2002) 28 Cal.4th 457, 482 [122 Cal.Rptr.2d 326, 49 P.3d 1067], Garden Grove stated that the California Supreme Court had determined that “The possession and cultivation [if done under the CUA] become just as lawful as ‘the possession and acquisition of any prescription drug.’ ” (157 Cal.App.4th at p. 372.) But Garden Grove mischaracterized the holding of Mower: The California Supreme Court instead said “the possession and cultivation of marijuana [under the CUA] is no more criminal—so long as its conditions are satisfied—than the possession and acquisition of any prescription drug with a physician’s prescription.” (Mower, supra, 28 Cal.4th at p. 482, italics added.) Garden Grove used “lawful” as a synonym for noncriminal, but there is a difference. That difference was confirmed by the California Supreme Court in Ross, holding that the CUA did not give “marijuana the same status as any legal prescription drug.” (Ross, supra, 42 Cal.4th at p. 926.) Instead, it “merely exempted [persons complying with the CUA] from criminal liability under two specifically designated state statutes.” (Ibid.) This mistake by Garden Grove influenced its analysis and led to an erroneous result, authorizing the return of marijuana to a private person, in violation of federal law.
NORML goes astray when it asserts the issuance of government identification cards to facilitate marijuana use under the CUA and amending legislation does “not pose a significant impediment to specific federal objectives embodied in the CSA.” (NORML, supra, 165 Cal.App.4th at p. 826.) The principal objective of the CSA is to eliminate narcotics use, including the use of marijuana. Facilitating the use of marijuana obstructs that objective. A fair reading of Raich undermines NORML’s analysis and its conclusion.
The CUA states that one of its purposes is “[t]o ensure that seriously ill Californians have the right to obtain and use” medical marijuana. (Health & *743Saf. Code, § 11362.5, subd. (b)(1)(A).) While this language can be read broadly to create a protected property interest in marijuana, such interest would be of no effect in light of federal law. And the California Supreme Court has read this language narrowly, holding that the limited “ ‘right’ to obtain and use marijuana created by the [CUA] is the right” to avoid criminal sanctions. (Ross, supra, 42 Cal.4th at p. 929.) The CUA did not and could not vest a person with a true “right” to possess marijuana in derogation of the CSA as interpreted in Raich. The CUA merely created “a narrow exception to the criminal law.” (Ross, at p. 929; see People v. Wright (2006) 40 Cal.4th 81, 84 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th 747, 774 [33 Cal.Rptr.3d 859] [CUA “created a limited defense to crimes, not a constitutional right to obtain marijuana”].)
The CSA makes marijuana contraband per se: “Contraband is of two types: contraband per se and derivative contraband. Contraband per se consists of objects which are ‘intrinsically illegal in character,’ ‘the possession of which, without more, constitutes a crime.’ [Citation.] A typical example is cocaine, a controlled substance, the possession of which is unlawful under the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. Courts will not entertain a claim contesting the confiscation of contraband per se because one cannot have a property right in that which is not subject to legal possession.” (Cooper v. City of Greenwood, Miss. (5th Cir. 1990) 904 F.2d 302, 304—305 (Cooper); see U.S. v. Harrell (9th Cir. 2008) 530 F.3d 1051, 1057 [“An object is contraband per se if its possession, without more, constitutes a crime; or in other words, if there is no legal purpose to which the object could be put.”].)
Under the supreme law of the land, marijuana is just as illegal as cocaine, and therefore is contraband per se: “The following shall be subject to forfeiture to the United States and no property right shall exist in them: [j[] (1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this subchapter, [f] . . . [f] (8) All controlled substances which have been possessed in violation of this subchapter.” (21 U.S.C.A. § 881(a).) In part the CSA defines what may be subject to forfeiture, but it also declares that “no property right shall exist” in, among other things, specified substances including marijuana. Federal law is supreme, making marijuana contraband per se even in California.
The distinction between contraband per se and derivative contraband is critical because due process attaches to lawful property and to property whose status must be ascertained, such as derivative contraband, that is, property “not inherently illegal to possess.” (16D C.J.S. (2005) Constitutional Law, § 1850, p. 192; see People v. Superior Court (McGrow) (1979) 100 Cal.App.3d 154, 159 [160 Cal.Rptr. 663] [“if the contraband nature of seized property is in doubt, there should be an appropriate procedure for making that determination”].)
*744But neither tort liability nor due process rights arise from the seizure or destruction of contraband per se.
As for tort liability, it has long been the rule that a conversion action “will not lie for property which can only be possessed in violation of law.” (Bowers, A Treatise on the Law of Conversion (1917) When Subjects of Conversion, § 38, p. 29 (Bowers).) Such property cannot be returned and the possessor cannot maintain an action for damages. (Aday v. Superior Court (1961) 55 Cal.2d 789, 800 [13 Cal.Rptr. 415, 362 P.2d 47] [“if any of the property seized other than the named books was contraband, petitioners are not entitled to its return”]; Plymouth Sedan v. Pennsylvania (1965) 380 U.S. 693, 699 [14 L.Ed.2d 170, 85 S.Ct. 1246] [“The return of the contraband would clearly have frustrated the express public policy against the possession of such objects.”]; Boggs v. Rubin (D.C. Cir. 1998) 333 U.S. App.D.C. 138 [161 F.3d 37, 40] [“ ‘[Individuals have no property right in contraband materials and contraband materials may not be returned to them.’ ”]; Cooper, supra, 904 F.2d at pp. 304-305; U.S. v. Bagley (8th Cir. 1990) 899 F.2d 707, 708 [“ ‘to allow [Bagley] to reap the economic benefit from ownership of weapons [] which it is illegal for him to possess would make a mockery of the law’ ”]; Stanley-Thompson Liquor Co. v. People (1917) 63 Colo. 456, 458 [168 P. 750, 751] [“things which are capable of no use for lawful purposes ... are not the subject of property. They cannot be recovered in replevin, nor will damages be given for their loss or injury”]; Miller v. Chicago & N.W. Ry. Co. (1913) 153 Wis. 431, 434 [141 N.W. 263, 264] [“courts will not regard such value as a legitimate measure of damages to be recovered, where the article is destroyed. And where the implement has no value for any lawful purpose no damages in a case of this kind are recoverable”]; Oviatt v. Pond (1861) 29 Conn. 479 [liquor kept for illegal purpose deemed to have no value]; Comment, Intoxicating Liquor as the Subject of Larceny: Public Policy: The National Prohibition Act (1923) 11 Cal. L.Rev. 369, 370 (Comment) [“there may be no recovery against the government for confiscation. Nor may the ‘possessor’ sue for the value when the [illegal] goods are taken from him by a private citizen” (fn. omitted)], cf. U.S. v. Seijuddin (9th Cir. 1987) 820 F.2d 1074, 1078-1079 [person convicted of felony whose firearms were later seized may be able to recoup their value because firearms are not contraband per se]; U.S. v. McCormick (9th Cir. 1974) 502 F.2d 281, 288 [automobile, unlike narcotics, is not contraband per se].)
Under settled common law principles, there can be no tort liability for the destruction of contraband per se.
Nor does the seizure and destruction of contraband per se offend due process principles. Due process protects lawful property interests: “ ‘There can be no forfeiture of property without notice to the owner and a hearing at *745which he can be heard, except in a few cases of necessity, i.e., property kept in violation of law which is incapable of lawful use.’ ” (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286 [231 P.2d 832], italics added; see Net Forfeiture, 63 Ops.Cal.Atty.Gen. 346, 354 (1980) [no need for notice “where the property is contraband (i.e., illegal to possess), has no lawful use, or constitutes a danger to the public safety”].) No prior hearing is required, as to contraband per se. (See Samuels v. McCurdy (1925) 267 U.S. 188, 199-200 [69 L.Ed. 568, 45 S.Ct. 264]; cf. Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 433-434 [71 L.Ed.2d 265, 102 S.Ct. 1148] [some type of hearing required for “protected property interest”].)
There are two narrow legal interests that are implicated by contraband per se, but neither has any application to the facts alleged in this case. First, a possessor of contraband per se has the right to challenge the lawfulness of its seizure in a criminal case. (See United States v. Jeffers (1951) 342 U.S. 48, 52-54 [96 L.Ed. 59, 72 S.Ct. 93] [fact no property rights existed in narcotics did not preclude application of exclusionary rule, but did preclude return of narcotics to the owner].) But David Williams, real party in interest here, was not prosecuted.
Second, contraband per se is treated as property for purposes of imposing criminal liability for theft and related crimes, as a matter of public policy. (See People v. Dillon (1983) 34 Cal.3d 441, 456-157 & fn. 5 [194 Cal.Rptr. 390, 668 P.2d 697] [taking standing marijuana can support robbery charge]; People v. Walker (1939) 33 Cal.App.2d 18, 20 [90 P.2d 854].) In several recent cases, armed criminals have robbed or attempted to rob persons of medical marijuana. The same thing happened during Prohibition. (Comment, supra, 11 Cal. L.Rev. 369 [“The daily newspapers of recent months have contained many notices of daring raids and housebreakings for the purpose of carrying away intoxicating liquor.”].) Such persons are properly prosecuted for their crimes, but this does not confer any property rights on their victims.
Had Deputy Hancock been accompanied by a federal agent who ordered the destruction, no suit would lie. (See Raich, supra, 545 U.S. at p. 7 [as to one party, “federal agents seized and destroyed all six” plants].) And Deputy Hancock had no legal duty to refrain from seizing and destroying all of the plants. Nothing in the complaint suggests his direction to Williams to destroy the plants was unreasonable apart from Williams’s view that he had the right to grow marijuana. So, how has Deputy Hancock subjected himself and his department to possible liability? Garden Grove unfairly discounted the practical effects of its holding, that medical marijuana is protected property, to the day-to-day realities faced by state law enforcement, and this lawsuit shows why.
*746Compensating Williams for the purported value of the destroyed marijuana would assure growers of marijuana that the courts of California will protect their crops. This obstructs the federal policy adopted by Congress in the CSA as interpreted and upheld by the United States Supreme Court in Raich.
Medical marijuana users under the CUA do have some administrative protection for their marijuana. The California Attorney General, the “chief law officer of the State” (Cal. Const., art. V, § 13), has issued a bulletin that “recommends that state and local law enforcement officers not arrest individuals or seize marijuana under federal law when the officer determines from the facts available that the cultivation, possession, or transportation is permitted under California's medical marijuana laws.” (Cal. Dept, of Justice, Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (Aug. 2008) p. 4.) This is a sensible position, and presumably local law enforcement agencies will adopt appropriate policies and training programs. But it is only in benign forbearance that medical marijuana users are protected. They do not have any “right” to sue to protect their marijuana until federal law is changed.
B.
The fourth amended complaint alleges Williams “collectively cultivates marijuana” with other people at his residence. Deputy Jacob Hancock, while on duty and without a warrant, ordered Williams to destroy some but not all of the marijuana plants, and Williams did so. Williams would like to continue with the collective, but feels deterred lest he again be forced to destroy marijuana plants after investing time and energy in growing them.
The complaint alleges the Butte County Sheriff has adopted a policy limiting the way in which a collective can operate, specifically, that it can be done only if each member is an active participant in the actual cultivation. Later the complaint refers to this as an “underground” policy.2
The complaint is divided into five claims, styled as separate causes of action, as follows.
1. Williams contends the alleged underground policy conflicts with Health and Safety Code section 11362.775, and he is therefore entitled to declaratory and injunctive relief. I disagree. That statute provides in full: “Qualified patients, persons with valid identification cards, and the designated *747primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (Health & Saf. Code, § 11362.775.)
The alleged underground policy, as described in the complaint, does not impose any criminal sanction; therefore, it does not conflict with this statute. The destruction of property as alleged in the complaint was not a criminal sanction. Therefore the complaint fails to allege that the underground policy conflicts with state law.
Technically, a party seeking declaratory relief is entitled to a declaration of rights, even if the court concludes he or she has no rights. But it has been held that an appellate decision explaining why a party has no rights suffices. (See Savient Pharmaceuticals, Inc. v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1464 [3 Cal.Rptr.3d 689].) Therefore this claim does not warrant denying the writ.
2. Williams alleges an unreasonable search and seizure. Williams alleges Deputy Hancock wrongly ordered Williams to destroy the marijuana and remained “after there was no longer any probable cause to believe that [Williams] had committed any state law crime.” There is no claim the search was otherwise unreasonable, for example, that the marijuana was being grown inside the house, rather than in plain sight, or any other claim of wrongful conduct by Deputy Hancock. The facts alleged show that Deputy Hancock ordered the destruction of some, but not all, of the contraband he found on Williams’s property. The complaint does not allege any facts showing any actionable wrongdoing because the property destroyed was of no legal value and suit may not be maintained for its destruction, as stated above.
3. Williams sought declaratory and injunctive relief, not damages, based on state due process principles. The relevant portion of the California Constitution provides: “A person may not be deprived of life, liberty, or property without due process of law . . . .” (Cal. Const., art. I, § 7, subd. (a).) The deprivation of “property” without a hearing is a violation of this section. (See Hughes v. Neth (1978) 80 Cal.App.3d 952, 960 [146 Cal.Rptr. 37]; Modern Loan Co. v. Police Court (1910) 12 Cal.App. 582, 585 [108 R 56]; see 7 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, §§ 678-679, pp. 1097-1098 [subsequent hearing may protect property interest].) Virtually anything anyone can legitimately possess, transfer or acquire may be protected property. (See Traverso v. People ex rel. Dept. of *748Transportation (1993) 6 Cal.4th 1152, 1160 [26 Cal.Rptr.2d 217, 864 P.2d 488].) However, marijuana is not protected property.
The California due process clause, however, does not necessarily turn on the existence of a property or liberty interest, as does the federal due process clause. Our state due process clause also protects a dignity interest, the right to be free from “arbitrary adjudicative procedures.” (People v. Ramirez (1979) 25 Cal.3d 260, 264 [158 Cal.Rptr. 316, 599 P.2d 622]; see id. at pp. 267-269.) But when examined, the difference is small, and the state law “ ‘claimant must nevertheless identify a statutorily conferred benefit or interest of which he or she has been deprived to trigger procedural due process under the California Constitution and the Ramirez analysis of what procedure is due.’ ” (Gresher v. Anderson (2005) 127 Cal.App.4th 88, 105 [25 Cal.Rptr.3d 408]; see id. at p. 106; Nichols v. County of Santa Clara (1990) 223 Cal.App.3d 1236, 1247 [273 Cal.Rptr. 84] [no hearing needed when concealed weapons permit was revoked, in part because dignity interest was satisfied when holder was told of the reason for the decision].) Here, the only “statutorily conferred” benefit is the right to be free of criminal sanctions, and to the extent the CUA can be read to confer some property interest in marijuana, it conflicts with federal law, which is the controlling law. Thus, the allegations do not plead the violation of any protected “dignity interest.”
4. Williams alleged the conduct described above violated the Bane Act, Civil Code section 52.1.
Subdivision (b) of Civil Code section 52.1 provides that “Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a),” may sue. Subdivision (a) generally provides liability where “a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.”
The only “right” conferred by the CUA is immunity from prosecution, and Williams was not prosecuted. Although the CUA may be read broadly to grant property interests, as a matter of federal law it cannot. Further, the California Supreme Court has not read the CUA so broadly. (Ross, supra, 42 Cal.4th at pp. 928-929.)
*7495. Finally, Williams attempts to state a claim for conversion. A necessary component of such a claim is that the property taken has cognizable value. Contraband per se has no such value. (Bowers, supra, § 38, p. 29.)
C.
As interpreted by the United States Supreme Court, federal narcotics laws make marijuana contraband per se, regardless of the medical marijuana laws. There is no viable cause of action in the fourth amended complaint. There is no suggestion that the trial court should have granted leave to file a fifth amended complaint; therefore, the demurrer should have been sustained without leave to amend. Because there is no reason to subject the parties to the cost of a needless trial, I would issue a peremptory writ of mandate.
Petitioners’ petition for review by the Supreme Court was denied September 23, 2009, S175219. Werdegar, J., did not participate therein. Baxter, J., and Chin, J., were of the opinion that the petition should be granted.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Twelve states in addition to California have passed laws in line with the CUA (Compassionate Use Act of 1996; Health & Saf. Code, § 11362.5), generally allowing (so far as state law is concerned) the use of marijuana for medical purposes. (See Alaska Stat. § 17.37.010 et seq.; Colo. Const., art. 18, § 14; Haw. Rev. Stat. § 329-121 et seq.; Me. Rev. Stat. Ann., tit. 22, § 2383-B; Mich. Comp. Laws § 333.26421 et seq.; Mont. Code Ann. § 50-46-101 et seq.; Nev. Rev. Stat. § 453A.010 et seq.; N.M. Stat., ch. 26, art. 2B; Or. Rev. Stat. § 475.300 et seq.; R.I. Gen. Laws § 21-28.6-1 et seq.; Wash. Rev. Code § 69.51A.005 et seq.; Vt. Stat. Ann., tit. 18, ch. 86.)
In People v. Mentch (2008) 45 Cal.4th 274 [5 Cal.Rptr.3d 480, 195 P.3d 1061], the California Supreme Court held that a person who only supplies marijuana and instructs on its use cannot qualify as a primary caregiver under the CUA.