Amended in Senate June 9, 2014

Amended in Assembly May 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1698

Introduced by Assembly Member Wagner

February 13, 2014

An act to amend Section 115 of the Penal Code, relating to falsified public documents.

LEGISLATIVE COUNSEL’S DIGEST

AB 1698, as amended, Wagner. Falsified public records.

Under existing law, a person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.

This bill would provide that after a person is convicted of a violation of that law, or a plea is entered whereby a charge alleging a violation of that law is dismissed and a waiver is obtained as specified, upon written motion of the prosecuting agency, the court, after a hearing, as specified, is required to issue a written order that the false or forged instrument be adjudged void ab initio if the court determines that an order is appropriate under applicable law. The bill would require the order to state whether the instrument is false or forged, or both false and forged, and describe the nature of the falsity or forgery. The bill would require a copy of the instrument to be attached to the order and a certified copy of the order to be filed, registered, or recorded. The bill would require a prosecuting agency to follow specific procedures for filing the motion, including, but not limited to, requirements to provide notice to interested parties, and would require a court to take specified procedural actions.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 115 of the Penal Code is amended to
read:

115.  

(a) Every person who knowingly procures or offers any
false or forged instrument to be filed, registered, or recorded in
any public office within this state, which instrument, if genuine,
might be filed, registered, or recorded under any law of this state
or of the United States, is guilty of a felony.

(b) Each instrument which is procured or offered to be filed,
registered, or recorded in violation of subdivision (a) shall
constitute a separate violation of this section.

(c) Except in unusual cases where the interests of justice would
best be served if probation is granted, probation shall not be granted
to, nor shall the execution or imposition of sentence be suspended
for, any of the following persons:

(1) Any person with a prior conviction under this section who
is again convicted of a violation of this section in a separate
proceeding.

(2) Any person who is convicted of more than one violation of
this section in a single proceeding, with intent to defraud another,
and where the violations resulted in a cumulative financial loss
exceeding one hundred thousand dollars ($100,000).

(d) For purposes of prosecution under this section, each act of
procurement or of offering a false or forged instrument to be filed,
registered, or recorded shall be considered a separately punishable
offense.

(e) (1) After a person is convicted of a violation of this section,
or a plea is entered whereby a charge alleging a violation of this
section is dismissed and waiver is obtained pursuant to People v.
Harvey (1979) 25 Cal.3d 754, upon written motion of the
prosecuting agency, the court, after a hearing described in
subdivision (f), shall issue a written order that the false or forged
instrument be adjudged void ab initio if the court determines that
an order is appropriate under applicable law. The order shall state
whether the instrument is false or forged, or both false and forged,
and describe the nature of the falsity or forgery. A copy of the
instrument shall be attached to the order and a certified copy of
the order shall be filed, registered, or recorded.

(2) (A) If the order pertains to a false or forged instrument that
has been recorded with a county recorder, an order made pursuant
to this section shall be recorded in the county where the affected
real property is located. The order shall also reference the county
recorder’s document recording number of any notice of pendency
of action recorded pursuant to paragraph (2) of subdivision (f).

(B)  As to any order, notice of pendency of action, or withdrawal
of notice of pendency of action recorded pursuant to this section,
recording fees shall be waived pursuant to Section 27383 of the
Government Code.

(f) A prosecuting agency shall use the following procedures in
filing a motion under subdivision (e):

(1) Within 10 calendar days of filing a criminal complaint or
indictment alleging a violation of this section, the prosecuting
agency shall provide written notice by certified mail to all parties
who have an interest in the property affected by the false or forged
instrument, or in the instrument itself, including those described
in paragraph (5).

(2) (A) Within 10 calendar days of filing a criminal complaint
or indictment alleging a violation of this section, the prosecuting
agency shall record a notice of pendency of action in the county
in which the affected real property is located.

(B) Within 10 calendar days of the case being adjudicated or
dismissed without obtaining an order pursuant to subdivision (e),
the prosecuting agency shall record a withdrawal of the notice of
pendency of action in the county where the affected real property
is located.

(3) The written notice and notice of pendency of action described
in paragraphs (1) and (2) shall inform the interested parties that a
criminal action has commenced against the property affected by
the false or forged instrument, or the instrument, or both as
applicable, and shall notify the interested parties of their right to
be heard if a motion is brought under subdivision (e) to void the
false or forged instrument. The notice shall state the street address,
if available, and the legal description of the affected real property.

(4) Failure of the prosecuting agency to provide written notice
or record a pendency of action as required under paragraphs (1)
and (2) within 10 calendar days shall not prevent the prosecuting
agency from later making a motion under subdivision (e), but the
court shall take the failure to provide notice or record a pendency
of action as required under paragraphs (1) and (2) as reason to
provide any interested parties additional time to respond to the
motion. Failure of the prosecuting agency to so notify interested
parties under this subdivision or record a pendency of action as
required under paragraphs (1) and (2) within 10 calendar days shall
create a presumption that a finding as described in paragraph (9)
is necessary to protect the property rights of the interested party
or parties.

(5) If the instrument sought to be declared void involves real
property, “interested parties” include, but are not limited to, all
parties who have recorded with the county recorder in the county
where the affected property is located any of the following: a deed,
lien, mortgage, deed of trust, security interest, lease, or other
instrument declaring an interest in, or requesting notice relating
begin delete to end delete begin insert to, end insert the property affected by the false or forged instrument as of
the date of the filing of the criminal complaint or indictment.

(6) Any party not required to be noticed under paragraph (1) or
(5) who nonetheless notifies the prosecuting agency in writing of
the party’s desire to be notified if a motion is brought under
subdivision (e) to void the false or forged instrument shall be
treated as an interested party as defined in paragraph (1) or (5).

(7) The court shall set a hearing for the motion brought by the
prosecuting agency under subdivision (e) no earlier than 90
calendar days from the date the motion is made. The prosecuting
agency shall provide a copy by certified mail of the written motion
and a notice of hearing to all interested parties described in
paragraphs (1), (5), or (6), and all other persons who obtain an
interest in the property prior to recordation of notice of pendency
of action no later than 90 days before the hearing date set by the
court. The notice shall state the street address, if available, and the
legal description of the affected real property.

(8) At a hearing on a motion brought by the prosecuting agency
under subdivision (e), the defendant, prosecuting agency, and
interested parties described in paragraphs (1), (5), or (6), shall have
a right to be heard and present information to the court. No party
shall be denied a right to present information due to a lack of notice
by the prosecuting agency or failure to contact the prosecuting
agency or the court prior to the hearing.

(9) (A) At a hearing on a motion brought by a prosecuting
agency under subdivision (e), if the court determines that the
interests of justice or the need to protect the property rights of any
person or party so requires, including, but not limited to, a finding
that the matter may be more appropriately determined in a civil
proceeding, the court may decline to make a determination under
subdivision (e).

(B) If, prior to the hearing on the motion, any person or party
files a quiet title action begin delete which end delete begin insert that end insert seeks a judicial determination
of the validity of the same false or forged instrument that is the
subject of the motion, begin insert or the status of an interested party as a bona
fide purchaser of, or bona fide holder of an encumbrance on, the
property affected by the false or forged instrument, end insert the court may
consider that as an additional but not dispositive factor in making
its determination under subdivision (e); provided, however, that a
final judgment previously entered in that quiet title action shall be
followed to the extent otherwise required by law.

(g) As used in begin delete the section end delete begin insert this section, end insert “prosecuting agency”
means a city attorney, a district attorney, the Attorney General, or
other state or local agency actively prosecuting a case under this
section.

(h) An order made pursuant to subdivision (e) shall be
considered a judgment, and subject to appeal in accordance with,
paragraph (1) of subdivision (a) of Section 904.1 of the Code of
Civil Procedure.