BILL NUMBER: AB 639 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Norby
FEBRUARY 16, 2011
An act to amend Section 11471 of Sections
11471, 11489, and 11495 of, and to add Section 11471.2 to, the
Health and Safety Code, relating to controlled substances.
LEGISLATIVE COUNSEL'S DIGEST
AB 639, as amended, Norby. Controlled substances.
Existing law provides that in all cases where property used or
intended to be used to facilitate any violation of specified
controlled substance offenses is seized and forfeited to a state or
local governmental entity and, where necessary, sold, the moneys
forfeited or the proceeds of sale shall be distributed by the state
or local governmental entity to specified persons or entities for
specified purposes, including for the purpose of combating drug
abuse.
Existing law, the Uniform Controlled Substances Act, includes
provisions authorizing the seizure and forfeiture of property
involved in, or purchased with the proceeds from, a controlled
substance offense.
This bill would provide that property is deemed to be seized
whenever any agency takes possession or control of it. The bill would
add provisions that provide that seizing agencies or prosecuting
attorneys authorized to bring civil forfeiture proceedings shall not
directly or indirectly transfer seized property, including any
property seized by state or local law enforcement officers who are
detached to, deputized or commissioned by, or working in conjunction
with, a federal agency to any federal agency or any governmental
entity not created under and subject to state law, unless the court
enters an order, as specified, authorizing the property to be
transferred. The bill would provide that where a state or local
agency transfers seized property to any federal agency for forfeiture
in violation of these provisions, the state or local agency shall be
liable to the state in an action brought by the Attorney General for
24% of the proceeds received by the state or local agency from the
federal government and would provide that the funds would be required
to be deposited in the General Fund for expenditure, upon
appropriation by the Legislature, for drug prevention and treatment
services.
Existing law provides that a specified amount shall be deposited
to the General Fund, and that commencing January 1, 1995, all moneys
so deposited, in an amount not to exceed $10,000,000, shall be made
available for school safety and security, upon appropriation by the
Legislature, and shall be disbursed, as specified.
This bill would instead provide that a specified amount shall be
deposited to the General Fund, and that commencing January 1, 2012,
all moneys so deposited shall be made available for drug prevention
and treatment services, upon appropriation by the Legislature.
Existing law provides that each year the Attorney General shall
publish a report that sets forth specified information regarding
forfeiture actions.
This bill would provide that the report shall be published in book
form and made publicly accessible by electronic means, if feasible,
and shall include other specified information.
Existing law provides that property subject to forfeiture in
connection with specified violations of law pertaining to controlled
substances may be seized by any peace officer upon process issued by
any court having jurisdiction over the property, and that seizure
without process may be made if any of certain specified situations
exist.
This bill would make a technical, nonsubstantive change to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11471 of the Health and Safety Code is amended
to read:
11471. Property that is is deemed to be
seized whenever any agency takes possession or control of it.
Property subject to forfeiture under this division may be
seized by any peace officer upon process issued by any court having
jurisdiction over the property. Seizure without process may be made
if any of the following situations exist:
(a) The seizure is incident to an arrest or a search under a
search warrant.
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a criminal injunction or
forfeiture proceeding based upon this division.
(c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used
or is intended to be used in violation of this division.
(e) Real property subject to forfeiture may not be seized, absent
exigent circumstances, without notice to the interested parties and a
hearing to determine that seizure is necessary to preserve the
property pending the outcome of the proceedings. At the hearing, the
prosecution shall bear the burden of establishing that probable cause
exists for the forfeiture of the property and that seizure is
necessary to preserve the property pending the outcome of the
forfeiture proceedings. The court may issue seizure orders pursuant
to this section if it finds that seizure is warranted or pendente
lite orders pursuant to Section 11492 if it finds that the status quo
or value of the property can be preserved without seizure.
(f) Where business records are seized in conjunction with the
seizure of property subject to forfeiture, the seizing agency shall,
upon request, provide copies of the records to the person, persons,
or business entity from whom such the
records were seized.
SECTION 1. Section 11471.2 is added to the
Health and Safety Code , to read:
11471.2. (a) Any property seized by state or local law
enforcement officers who are detached to, deputized or commissioned
by, or working in conjunction with, a federal agency shall remain
subject to the provisions of this section.
(b) (1) Seizing agencies or prosecuting attorneys authorized to
bring civil forfeiture proceedings under this chapter shall not
directly or indirectly transfer seized property to any federal agency
or any governmental entity not created under and subject to state
law, unless the court enters an order, upon petition of the
prosecuting attorney, authorizing the property to be transferred.
(2) Where a state or local agency transfers seized property to any
federal agency for forfeiture, directly or indirectly, in violation
of this subdivision, the state or local agency shall be liable to the
state in any action brought by the Attorney General in an amount
equal to 24 percent of the proceeds received by the state or local
agency from the federal agency. Moneys awarded in the action shall be
deposited in the General Fund for allocation pursuant to
subparagraph (C) of paragraph (2) of subdivision (b) of Section 11489
of the Health and Safety Code. The Attorney General may recover the
cost of suit in this type of action.
(c) The court may not enter an order authorizing a transfer unless
one of the following conditions exists:
(1) It reasonably appears that the activity giving rise to the
investigation or seizure is interstate in nature and sufficiently
complex to justify a transfer.
(2) The seized property may only be forfeited under federal law.
(3) Pursuing forfeiture under state law would unduly burden
prosecuting attorneys or state law enforcement agencies.
(d) Prior to entering any order to transfer property pursuant to
this section, the court shall provide the owner of the property a
right to be heard with respect to that transfer.
SEC. 2. Section 11489 of the Health and
Safety Code is amended to read:
11489. Notwithstanding Section 11502 and except as otherwise
provided in Section 11473, in all cases where the property is seized
pursuant to this chapter and forfeited to the state or local
governmental entity and, where necessary, sold by the Department of
General Services or local governmental entity, the money forfeited or
the proceeds of sale shall be distributed by the state or local
governmental entity as follows:
(a) To the bona fide or innocent purchaser, conditional sales
vendor, or mortgagee of the property, if any, up to the amount of his
or her interest in the property, when the court declaring the
forfeiture orders a distribution to that person.
(b) The balance, if any, to accumulate, and to be distributed and
transferred quarterly in the following manner:
(1) To the state agency or local governmental entity for all
expenditures made or incurred by it in connection with the sale of
the property, including expenditures for any necessary costs of
notice required by Section 11488.4, and for any necessary repairs,
storage, or transportation of any property seized under this chapter.
(2) The remaining funds shall be distributed as follows:
(A) Sixty-five percent to the state, local, or state and local law
enforcement entities that participated in the seizure distributed so
as to reflect the proportionate contribution of each agency.
(i) Fifteen percent of the funds distributed pursuant to this
subparagraph shall be deposited in a special fund maintained by the
county, city, or city and county of any agency making the seizure or
seeking an order for forfeiture. This fund shall be used for the sole
purpose of funding programs designed to combat drug abuse and divert
gang activity, and shall wherever possible involve educators,
parents, community-based organizations and local businesses, and
uniformed law enforcement officers. Those programs that have been
evaluated as successful shall be given priority. These funds shall
not be used to supplant any state or local funds that would, in the
absence of this clause, otherwise be made available to the programs.
It is the intent of the Legislature to cause the development and
continuation of positive intervention programs for high-risk
elementary and secondary schoolage students. Local law enforcement
should work in partnership with state and local agencies and the
private sector in administering these programs.
(ii) The actual distribution of funds set aside pursuant to clause
(i) is to be determined by a panel consisting of the sheriff of the
county, a police chief selected by the other chiefs in the county,
and the district attorney and the chief probation officer of the
county.
(B) Ten percent to the prosecutorial agency which processes the
forfeiture action.
(C) Twenty-four percent to the General Fund. Notwithstanding
Section 13340 of the Government Code, the moneys are hereby
continuously appropriated to the General Fund. Commencing January 1,
1995 2012 , all moneys deposited in the
General Fund pursuant to this subparagraph , in an amount
not to exceed ten million dollars ($10,000,000), shall be
made available for school safety and security
drug prevention and treatment services , upon appropriation by
the Legislature , and shall be disbursed pursuant to Senate
Bill 1255 of the 1993-94 Regular Session, as enacted .
(D) One percent to a private nonprofit organization composed of
local prosecutors which shall use these funds for the exclusive
purpose of providing a statewide program of education and training
for prosecutors and law enforcement officers in ethics and the proper
use of laws permitting the seizure and forfeiture of assets under
this chapter.
(c) (1) Notwithstanding Item 0820-101-469 of
the Budget Act of 1985 (Chapter 111 of the Statutes of 1985), all
funds allocated to the Department of Justice pursuant to subparagraph
(A) of paragraph (2) of subdivision (b) shall be deposited into the
Department of Justice Special Deposit Fund-State Asset Forfeiture
Account and used for the law enforcement efforts of the state or for
state or local law enforcement efforts pursuant to Section 11493.
All
(2) All funds allocated to the
Department of Justice by the federal government under its Federal
Asset Forfeiture program authorized by the Comprehensive Crime
Control Act of 1984 may be deposited directly into the Narcotics
Assistance and Relinquishment by Criminal Offender Fund and used for
state and local law enforcement efforts pursuant to Section 11493.
Funds
(3) Funds which are not deposited
pursuant to the above paragraph shall be deposited into the
Department of Justice Special Deposit Fund-Federal Asset Forfeiture
Account.
(d) (1) All the funds distributed to the
state or local governmental entity pursuant to subparagraphs (A) and
(B) of paragraph (2) of subdivision (b) shall not supplant any state
or local funds that would, in the absence of this subdivision, be
made available to support the law enforcement and prosecutorial
efforts of these agencies.
The
(2) The court shall order the
forfeiture proceeds distributed to the state, local, or state and
local governmental entities as provided in this section.
For
(3) For the purposes of this
section, "local governmental entity" means any city, county, or city
and county in this state.
(e) This section shall become operative on January 1, 1994.
SEC. 3. Section 11495 of the Health and
Safety Code is amended to read:
11495. (a) The funds received by the law enforcement agencies
under Section 11489 shall be deposited into an account maintained by
the Controller, county auditor, or city treasurer. These funds shall
be distributed to the law enforcement agencies at their request. The
Controller, auditor, or treasurer shall maintain a record of these
disbursements which records shall be open to public inspection,
subject to the privileges contained in Sections 1040, 1041, and 1042
of the Evidence Code.
(b) Upon request of the governing body of the jurisdiction in
which the distributions are made, the Controller, auditor, or
treasurer shall conduct an audit of these funds and their use. In the
case of the state, the governing body shall be the Legislature.
(c) Each year, the Attorney General shall publish a report ,
in book form and made publicly accessible by electronic means, if
feasible, which sets forth the following information for the
state, each county, each city, and each city and county:
(1) The number of forfeiture actions initiated.
(2) The number of cases and the administrative number or court
docket number of each case for which forfeiture was ordered or
declared.
(3) The value of the assets forfeited.
(4) The recipients of the forfeited assets, the amounts received,
and the date of the disbursement.
(5) A complete description by the recipients of forfeited
assets of the purposes for which all forfeited assets were designated
or used, and the dates of all disbursements for each purpose.
(6) The number of forfeiture actions initiated under federal
law in which a state or local agency had a role, and a description of
the role served in each federal forfeiture action by each
participating state or local agency. The description shall include,
but not be limited to, the following information:
(A) The date of the seizure; the date of transfer of the case
from state or local authorities to federal authorities, if
applicable; and the date on which forfeiture was ordered or declared.
(B) The case number assigned to each federal forfeiture
action by federal authorities, if known, or, if the case number is
not known, other identifying information about the case.
(C) Whether the state or local agency originated information
leading to a seizure or federal forfeiture action.
(D) Whether the state or local agency supplied unique or
indispensable assistance to the federal forfeiture action, and a
description of the assistance.
(E) The number of hours expended by the state or local agency
on the case.
(F) Whether a federal agency has classified the federal
forfeiture case as a "joint" seizure and forfeiture action, or as an
"adoption" by federal authorities of a case initiated by a state or
local agency, if that federal classification is known.
(7) The value of assets forfeited under federal law in each
case in which a state or local agency had a role.
(8) The value of all shares of assets forfeited under federal
law that are returned to a state or local agency that had a role in
the federal forfeiture action, and the date of receipt of the shares.
(9) A complete description by state and local agencies that
receive assets forfeited under federal law of the purposes for which
all the forfeited assets were designated or used, and the dates of
all disbursements for each purpose.
(d) The Attorney General shall develop administrative guidelines
for the collection and publication of the information required in
subdivision (c).
(e) The Attorney General's report shall cover the calendar year
and shall be made no later than March 1 of each year beginning with
the year after the enactment of this law , except that the
portion of the report setting out the data and information required
by paragraphs (5) to (9), inclusive, of subdivision (c)
shall be made no later than March 1, 2013, and by that day every year
thereafter .