Senate BillNo. 762


Introduced by Senator Hill

February 22, 2013


An act to amend Sections 21646 and 21647 of, and to add Section 21645.1 to, the Business and Professions Code, to amend Section 21206.8 of the Financial Code, and to amend Sections 1411 and 11108.5 of the Penal Code, relating to secondhand goods, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

SB 762, as introduced, Hill. Secondhand goods.

(1) Existing law provides for the regulation of secondhand dealers, as defined, and makes it unlawful for a person to engage in the business of a secondhand dealer without a license issued by the chief of police, the sheriff, or, where appropriate, the police commission. Existing law makes it a crime, punishable by specified fines or imprisonment, or both, if a person knowingly violates the provisions regulating secondhand dealers. Existing law authorizes the district attorney or the Attorney General to bring an action to enjoin a violation or threatened violation of the provisions regulating secondhand dealers.

This bill would require a person conducting business as a secondhand dealer to provide a valid secondhand dealer license to any peace officer upon demand. Under specified circumstances, the bill would also authorize a peace officer to impound all secondhand tangible personal property, as defined, or currency up to $25,000 found in the possession or control of the person if a secondhand dealer license is not provided to the peace officer and the peace officer has probable cause to believe the property or currency was acquired while the person was operating as a secondhand dealer without being licensed, except as specified. The bill would require the imposition of storage charges for secondhand tangible personal property impounded pursuant to these provisions, would authorize the property or currency to be stored up to 90 days, and would set forth requirements for the redemption, or the forfeiture or sale, of the impounded property or currency. The bill would require an impounding agency to satisfy specified requirements regarding impounded property or currency that has not been redeemed and would require the district attorney or city attorney to follow specified procedures relative to forfeiture and claims to the property or currency. The bill would establish a $100 fee for asserting a claim to the impounded property or currency that is subject to forfeiture, would require the fee to be reimbursed to a prevailing claimant, and would, if a claimant does not prevail, require the fee to be distributed between the district attorney or city attorney filing the action and the Trial Court Trust Fund. The proceeds of any sale or forfeiture under the bill would also be disbursed in a specified manner, including, of any remaining proceeds, 10% to the Restitution Fund, a continuously appropriated fund, thereby making an appropriation.

The bill would also authorize a nonprofit association composed of 50 or more licensed secondhand dealers to bring an action to enjoin a person from conducting business as a secondhand dealer without being licensed and would authorize an association that prevails in such an action to be awarded reasonable attorney’s fees and costs of suit, as specified.

(2) Existing law authorizes a peace officer to place a hold on property in possession of a pawnbroker, secondhand dealer, or coin dealer if the peace officer has probable cause to believe that property is stolen, as specified, and regulates the manner in which the property is placed on hold, persons claiming the property are notified, and disputes arising out of claims for the property are adjudicated, as provided.

This bill would revise these provisions to, among other things, require a peace officer to place a hold on stolen property, as specified, limit the provisions to licensed pawnbrokers and secondhand dealers, revise notification procedures regarding lost or stolen property, and require a person claiming ownership of allegedly stolen or embezzled property to file a written statement, signed under penalty of perjury, stating the factual basis upon which they claim ownership or an interest in the property.

(3) Because a knowing violation of the bill’s provisions by a person engaging in the business of a secondhand dealer would be a crime, and because the bill would expand the crime of perjury, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: yes.

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

P3    1

SECTION 1.  

Section 21645.1 is added to the Business and
2Professions Code
, to read:

3

21645.1.  

(a) The Legislature hereby finds and declares that
4an effective means of punishing and deterring the unlicensed
5practice of dealing in secondhand tangible personal property,
6including, but not limited to, gold jewelry, platinum jewelry, and
7sterling silver, and to further effectuate the legislative intent of
8Section 21625, is through the forfeiture of property acquired and
9accumulated by a person who is required to be licensed pursuant
10to this article but is found to be in violation of Section 21640. The
11provisions of this section are intended to be in addition to the
12penalty provisions of Section 21645.

13(b) A person conducting business as a secondhand dealer, as
14defined in Section 21626, shall provide a valid license issued under
15this article to any peace officer upon demand.

16(c) (1) If a person, after being convicted of operating an
17unlicensed secondhand business at any time within the preceding
18five years or after being issued a written warning within the
19preceding 12 months that the business must be licensed under this
20article, is found buying secondhand tangible personal property
21from the public and is unable to provide a valid secondhand dealer
22license issued under this article on the demand of a peace officer
23as required by subdivision (b), the peace officer may impound all
24secondhand tangible personal property and any currency in an
25amount not to exceed twenty-five thousand dollars ($25,000) found
26in the possession or under the control of the person if, upon
27examination, the peace officer has probable cause to believe the
28secondhand tangible personal property or currency was acquired
P4    1while the person was operating as a secondhand dealer without
2being licensed, unless the peace officer is reasonably able, by other
3means, to verify that the person was properly licensed at the time
4the person acquired the secondhand tangible personal property or
5currency.

6(2) A peace officer shall not impound the secondhand tangible
7personal property or any currency pursuant to this subdivision if
8there is credible evidence establishing all of the following:

9(A) The person conducting business as a secondhand dealer
10provides documentation indicating that he or she held a valid
11secondhand dealer license for that location at any time within the
12preceding 90 days, unless the license was terminated by the issuing
13agency and the person was provided notice of termination.

14(B) The person required to be licensed pursuant to this article
15recorded and reported the acquisition of secondhand tangible
16personal property pursuant to Section 21628.

17(3) A peace officer may exercise discretion with respect to
18impoundment under this subdivision if the person can establish
19that he or she is an employee of a person required to be licensed
20under this article, the employer is not present, and the person
21conducting business as a secondhand dealer does not have
22management or control of, or a financial interest in, the business
23for which a secondhand dealer license is required under this article.

24(4) A peace officer shall serve the person from whom
25secondhand tangible personal property or currency is taken
26pursuant to this subdivision with a notice specifying the
27requirements set forth in subdivision (d), the right of the
28impounding agency to sell the secondhand tangible personal
29property and forfeit the currency if the requirements of subdivision
30(d) are not met within the statutory time, and the right of the person
31from whom the secondhand tangible personal property or currency
32is taken to challenge any sale or forfeiture following service of the
33notice of forfeiture required under subdivision (g). Within five
34days after the impoundment, the peace officer shall also serve on
35the person from whom the secondhand tangible personal property
36or currency is taken, and any secured creditor, a notice advising
37those parties that they are entitled to a postimpoundment hearing
38before the impounding agency within 30 days after the service of
39the postimpoundment hearing notice. A person from whom
40secondhand tangible personal property or currency is taken may
P5    1challenge the results of the postimpoundment hearing in the
2appropriate court.

3(d) Any secondhand tangible personal property or currency
4impounded pursuant to subdivision (c) shall be stored for a period
5not exceeding 90 days by the impounding officer, and shall be
6 available to be redeemed when both of the following conditions
7have been satisfied:

8(1) The person from whom the secondhand tangible personal
9property or currency was taken has obtained or otherwise produced
10a valid secondhand dealer license for the business as required under
11this article.

12(2) The reports of acquisition of secondhand tangible personal
13property as required by Section 21628 have been completed for
14all of the secondhand tangible personal property that was
15impounded.

16(e) Storage charges shall be imposed for the secondhand tangible
17personal property impounded under this section in accordance with
18Section 21200.6 of the Financial Code.

19(f) If after 60 days from the date of the impoundment the person
20from whom the secondhand tangible personal property or currency
21was taken has failed to satisfy the requirements of subdivision (d),
22the impounding agency shall do all of the following:

23(1) If the name of the seller, seller’s identification, and
24description of the secondhand tangible personal property is known,
25the agency shall prepare the report of acquisition of secondhand
26tangible personal property for all impounded property as required
27by Section 21628 or verify that the report was duly transmitted to
28the Department of Justice.

29(2) Notify the district attorney or city attorney of the
30impoundment and request a notice of forfeiture.

31(g) The district attorney or city attorney shall serve on the person
32from whom the secondhand tangible personal property or currency
33was taken and on any secured creditor a notice of forfeiture for all
34or part of the secondhand tangible personal property or currency.
35The notice shall be issued by registered mail on or after the 65th
36day following the impoundment. The notice shall state that the
37person served with the notice of forfeiture has 15 calendar days
38from the date of the mailing of the notice to file a claim. A secured
39creditor located outside the State of California shall be allowed an
40additional five days to file a claim. The notice shall identify the
P6    1name and address of the district attorney or city attorney who is
2authorized to prosecute the forfeiture action and to receive
3objections. If no claim has been received after service of the notice
4of forfeiture, the impounding agency may sell the secondhand
5tangible personal property to the highest bidder at a noticed, public
6sale.

7(h) If the district attorney or city attorney issuing the notice of
8forfeiture does not receive a claim within the time limit provided
9in subdivision (g), the district attorney or city attorney shall sign
10and record with the county recorder a notice of forfeiture. A written
11declaration of forfeiture by the district attorney or city attorney
12shall be deemed to provide good and sufficient title to the forfeited
13property or currency. Any property or currency impounded but
14not forfeited shall be returned to the person from whom it was
15taken within 90 days of the impoundment.

16(i) (1) If the district attorney or city attorney receives a timely
17claim, the district attorney or city attorney shall file a petition for
18forfeiture within 10 days of receiving the claim with the appropriate
19court hearing any criminal action brought under Section 21640 or
2021645. The district attorney or city attorney shall establish an
21expedited hearing date in accordance with instructions from the
22court and the court shall hear the matter without delay. A fee of
23one hundred dollars ($100) shall be paid by any claimant but shall
24 be reimbursed by the impounding agency if the claimant prevails.
25To the extent practicable, the civil and criminal cases, if a criminal
26complaint is filed against the person who is accused of operating
27as an unlicensed secondhand dealer, shall be heard at the same
28time in an expedited, consolidated proceeding. A proceeding in
29the civil case is a limited civil case.

30(2) The fee shall be distributed equally between the district
31attorney or city attorney filing the action and the Trial Court Trust
32Fund.

33(3) The burden of proof in the civil case shall be on the person
34from whom the secondhand tangible personal property or currency
35was taken to prove by a preponderance of the evidence that the
36secondhand tangible personal property or currency has been
37acquired when the person from whom it was seized was properly
38licensed under this article and that the acquisition of the
39secondhand tangible personal property or currency was duly
40reported pursuant to Section 21628. All questions that may arise
P7    1shall be decided and all other proceedings shall be conducted as
2in an ordinary civil action.

3(4) A judgment of forfeiture does not require as a condition
4precedent the conviction of a defendant of an offense under this
5article.

6(5) The filing of a claim within the time limit specified in
7subdivision (g) is a jurisdictional prerequisite for the availing of
8the action authorized by that subdivision.

9(j) All right, title, and interest in the secondhand tangible
10personal property or currency shall vest in the impounding agency
11upon commission of the act giving rise to the forfeiture. However,
12the secondhand tangible personal property or currency shall not
13be subject to forfeiture or sale until all court challenges are
14resolved.

15(k) Any secondhand tangible personal property that is not
16redeemed pursuant to subdivision (d) and is subsequently forfeited
17pursuant to a notice of forfeiture or a judgment of forfeiture shall
18be sold to the highest bidder at a noticed, public sale. The notice
19shall be published in a local paper of general jurisdiction nearest
20the impounding agency within 10 days after that agency receives
21the notice or judgment of forfeiture.

22(l) The proceeds of any sale provided for pursuant to subdivision
23(k) or the forfeiture of currency shall be distributed in the following
24order:

25(1) First to the impounding agency to satisfy the storage charge
26provided in subdivision (e), if any.

27(2) Second, to any secured creditor to satisfy the indebtedness
28of the person from whom the secondhand tangible personal
29property or currency was taken.

30(3) Third, funds shall be made available to pay any local agency
31and court costs that are reasonably related to the implementation
32of this section and that remain unsatisfied.

33(4) Of the remaining proceeds, 10 percent shall be deposited
34into the Restitution Fund, 45 percent into the general fund of the
35city or county or city and county that instituted the forfeiture, and
3645 percent into the county or city and county in which the forfeiture
37occurred.

38(m) For purposes of this section, “secondhand tangible personal
39property” shall mean and refer to gold, silver, platinum, palladium,
40and jewelry made of gold, silver, platinum, palladium, or having
P8    1any diamond, ruby, emerald, or other precious stone, or any item
2 containing sterling or fine silver.

3

SEC. 2.  

Section 21646 of the Business and Professions Code
4 is amended to read:

5

21646.  

The district attorney or the Attorney General, in the
6name of the people of the State of California, may bring an action
7to enjoin the violation or the threatened violation of any provision
8of this article or of any regulation made pertaining to the provisions
9of this article.begin insert A nonprofit association composed of 50 or more
10licensed pawnbrokers or secondhand dealers may bring an action
11to enjoin a person from conducting business as a secondhand
12dealer without being licensed as provided in this article.end insert
Any
13proceeding brought hereunder shall be governed in all respects by
14the provisions of Chapter 3 (commencing with Section 525) of
15Title 7 of Part 2 of the Code of Civil Procedure.begin insert In the case of a
16nonprofit association bringing an action to enjoin a person from
17conducting business as a secondhand dealer without being
18licensed, if the association prevails and confers a public benefit
19by receiving an injunction, it shall be awarded its reasonable
20attorneyend insert
begin insert’s fees and costs of suit.end insert

21

SEC. 3.  

Section 21647 of the Business and Professions Code
22 is amended to read:

23

21647.  

(a) Whenever any peace officer has probable cause to
24believe that property, except coins, monetized bullion, or
25“commercial grade ingots” as defined in subdivision (d) of Section
2621627, in the possession of abegin delete pawnbroker, secondhand dealer, or
27coin dealerend delete
begin insert licensed pawnbroker or secondhand dealerend insert is stolen,
28the peace officerbegin delete mayend deletebegin insert shallend insert place a hold on the property for a period
29not to exceed 90 days. When a peace officer places a hold on the
30property, the peace officer shall give thebegin delete pawnbroker, secondhand
31dealer, or coin dealerend delete
begin insert licensed pawnbroker or secondhand dealerend insert
32 a written notice at the time the hold is placed, describing the item
33or items to be held. During that period thebegin delete pawnbroker, secondhand
34dealer, or coin dealerend delete
begin insert licensed pawnbroker or secondhand dealerend insert
35 shall not release or dispose of the property, except pursuant to a
36court order or upon receipt of a written authorization signed by
37any peace officer who is a member of the law enforcement agency
38of which the peace officer placing the hold on the property is a
39member. Abegin delete pawnbroker, secondhand property dealer, or coin dealerend delete
P9    1begin insert licensed pawnbroker or secondhand dealerend insert shall not be subject to
2civil liability for compliance with this section.

3(b) begin insert(1)end insertbegin insertend insert Whenever property that is in the possession of a
4begin delete pawnbroker, secondhand dealer, or coin dealer, whether or not the
5property has been placed on hold,end delete
begin insert licensed pawnbroker or
6secondhand dealer, and that has been placed on hold pursuant to
7this section,end insert
is required by a peace officer in a criminal
8investigation, thebegin delete pawnbroker, secondhand dealer, or coin dealer,end delete
9begin insert licensed pawnbroker or secondhand dealer,end insert upon reasonable
10notice, shall produce the property at reasonable times and places
11or may deliver the property to the peace officer upon the request
12of any peace officer.begin delete Ifend delete

13begin insert(2)end insertbegin insertend insertbegin insertIf property placed on hold pursuant to this section is
14physically surrendered or delivered to law enforcement during the
15period of the hold, the hold and the pawnbroker’s lien against the
16property shall continue. Upon termination of criminal proceedings
17for which the property was placed on hold, the property shall be
18returned to the pawnbroker from whom it was taken for disposition
19provided under subdivision (d).end insert

20(c) Whenever a law enforcement agency has knowledge that
21property in the possession of abegin delete pawnbroker, secondhand dealer,
22or coin dealerend delete
begin insert licensed pawnbroker or secondhand dealerend insert has been
23reported as lost or stolen, the law enforcement agency shallbegin insert, within
24two business days after placing the hold on the property pursuant
25to this section,end insert
notify in writing the person who reported the
26property as lost or stolen of the following:

27(1) The name, address, and telephone number of thebegin delete pawnbroker,
28secondhand dealer, or coin dealerend delete
begin insert licensed pawnbroker or
29secondhand dealerend insert
who reported the acquisition of the property.

30(2) That the law neither requires nor prohibits payment of a fee
31or any other condition in return for the surrender of the property,
32except that when the person who reported the property lost or
33stolen does not choose to participate in the prosecution of an
34identified alleged thief, the person shall pay thebegin delete pawnbroker,
35secondhand dealer, or coin dealerend delete
begin insert licensed pawnbroker or
36secondhand dealerend insert
the “out-of-pocket” expenses paid in the
37acquisition of the property in return for the surrender of the
38property.

39(3) That if the person who reported the property as lost or stolen
40takes no action to recover the property from thebegin delete pawnbroker,
P10   1secondhand dealer, or coin dealerend delete
begin insert licensed pawnbroker or
2secondhand dealerend insert
within 60 days of the mailing of the notice, the
3begin delete pawnbroker, secondhand dealer, or coin dealerend deletebegin insert licensed pawnbroker
4or secondhand dealerend insert
may treat the property as other property
5received in the ordinary course of business. During the 60-day
6notice period, thebegin delete pawnbroker, secondhand dealer, or coin dealerend delete
7begin insert licensed pawnbroker or secondhand dealerend insert may not release the
8property to any other person.

9(4) That a copy of the notice, with the address of the person
10who reported the property as lost or stolen deleted, will be mailed
11to thebegin delete pawnbroker, secondhand dealer, or coin dealerend deletebegin insert licensed
12pawnbroker or secondhand dealerend insert
who is in possession of the
13property.

14(d) When property that is in the possession of abegin delete pawnbroker,
15secondhand dealer, or coin dealerend delete
begin insert licensed pawnbroker or
16secondhand dealerend insert
is subject to a hold as provided in subdivision
17(a), and the property is no longer required for the purpose of a
18criminal investigation, the law enforcement agency that placed the
19hold on the property shall release the hold on the property. When
20the law enforcement agency has knowledge that the property has
21been reported lost or stolen, the law enforcement agency shall then
22make notification to the person who reported the property as lost
23or stolen pursuant to subdivision (c).

24(e) If a pledgor seeks to redeem property that is subject to a
25hold, the pawnbroker shall advise the pledgor of the name of the
26peace officer who placed the hold on the property and the name
27of the law enforcement agency of which the officer is a member.
28If the property is not required to be held pursuant to a criminal
29prosecution the hold shall be released.

30(f) Whenever information regarding allegedly lost or stolen
31property is entered into the Department of Justice automated
32property system or automated firearms system, and the property
33is thereafter identified and found to be in the possession of a
34begin delete pawnbroker, secondhand dealer, or coin dealer, and the property
35is thereafter placed on a hold pursuant to this section and theend delete

36begin insert licensed pawnbroker or secondhand dealer, the property shall be
37placed on a hold pursuant to this section and Section 11108.5 of
38the Penal Code.end insert

39begin insert(g)end insertbegin insertend insertbegin insertIf the end inserthold, including any additional hold, is allowed to lapse,
40or 60 days elapse following the delivery of the notice required to
P11   1be given bybegin insert subdivision (c) ofend insert this section to the person who
2reported the property to be lost or stolen without a claim being
3made by that person, whichever is later, thebegin delete pawnbroker,
4secondhand dealer, or coin dealerend delete
begin insert licensed pawnbroker or
5secondhand dealerend insert
may mail under a Certificate of Mailing issued
6by the United States Post Office, addressed to the law enforcement
7agency that placed the property on hold, a written request to delete
8the property listing from the Department of Justice automated
9property system or automated firearms system, as is applicable.
10Within 30 days after the request has been mailed, the law
11enforcement agency shall either cause the property listing to be
12deleted as requested or place a hold on the property. If no law
13enforcement agency takes any further action with respect to the
14property within 45 days after the mailing of the request, the
15begin delete pawnbroker, secondhand dealer, or coin dealerend deletebegin insert licensed pawnbroker
16or secondhand dealerend insert
may presume that the property listing has
17 been deleted as requested and may thereafter deal with the property
18accordingly, and shall not be subject to liability arising from the
19failure of the removal of the property listing from the Department
20of Justice automated property system or automated firearms system.

begin delete

21(g) Nothing in this section shall be construed to alter the
22authority of a peace officer to seize property pursuant to any other
23provision of statutory or case law.

end delete
begin insert

24(h) A licensed pawnbroker or secondhand dealer shall not refuse
25a request to place property in their possession on hold pursuant
26to this section when a peace officer has probable cause to believe
27the property is stolen. If a licensed pawnbroker or secondhand
28dealer refuses a request to place property on hold pursuant to this
29section, after being provided written notice of the provisions of
30this section, the property may be seized with or without a warrant.
31The peace officer shall issue a receipt as described in Section
3221206.7 of the Financial Code, left with the licensed pawnbroker
33or secondhand dealer. The property shall be disposed of pursuant
34to procedures set forth in Section 21206.8 of the Financial Code,
35which shall apply to both licensed pawnbrokers and secondhand
36dealers under this section.

end insert
begin insert

37(i) A search warrant shall not be issued for the search of the
38business of a licensed pawnbroker or secondhand dealer, unless
39the application by the peace officer discloses the peace officer’s
40prior efforts taken to utilize the hold procedures set forth in this
P12   1section and establishes to the issuing magistrate’s satisfaction that
2the licensed pawnbroker or secondhand dealer has refused to
3voluntarily surrender the stolen or embezzled property, or that
4there is probable cause to believe that the stolen or embezzled
5property is willfully being concealed by the licensed pawnbroker
6or secondhand dealer and that any notice required by this section
7would frustrate the criminal investigation of the licensed
8pawnbroker or secondhand dealer.

end insert
begin insert

9(j) If a civil or criminal court is called upon to adjudicate the
10competing claims of a licensed pawnbroker or secondhand dealer
11and another party claiming ownership or an interest in the property
12that is or was subject to a hold pursuant to this section, the court
13shall award possession of the property only after due consideration
14is given to the effect of Section 2403 of the Commercial Code.

end insert
15

SEC. 4.  

Section 21206.8 of the Financial Code is amended to
16read:

17

21206.8.  

(a) Notwithstanding the provisions of Chapter 12
18(commencing with Section 1407) of Title 10 of Part 2 of the Penal
19Code, whenever property alleged to have beenbegin insert lost,end insert stolenbegin insert,end insert or
20embezzled is taken from a pawnbroker, the peace officer,
21magistrate, court, clerk, or other person having custody of the
22property shall not deliver the property to any person claiming
23ownership unless the provisions of this section are complied with.

24(b) (1) If any person makes a claim of ownership, the person
25begin insert shall file a written statement, signed under penalty of perjury,
26stating the factual basis upon which they claim ownership or an
27interest in the property with the personend insert
having custody of the
28propertybegin insert, and the person having custody of the propertyend insert shall notify
29the pawnbrokerbegin insert of the claim by providing a true and correct copy
30of the claim to the pawnbrokerend insert
.

31(2) If the pawnbroker makes no claim with respect to the
32property within 10 days of such notification, the property may be
33disposed of as otherwise provided by law.

begin insert

34(3) In adjudicating the competing claims of a pawnbroker and
35a person claiming ownership or an interest in the property seized
36from a pawnbroker, the magistrate or the person having custody
37of the property shall give due consideration to the effect Section
382403 of the Commercial Code may have on the claims.

end insert
begin insert

39(4) At least 30 calendar days before any hearing adjudicating
40any competing claims of a pawnbroker and a person claiming
P13   1ownership or an interest in the property, the person having custody
2of the property shall deliver to the pawnbroker a true and correct
3copy of the police report substantiating the basis of the seizure of
4the property from the pawnbroker.

end insert

5(c) If property alleged to have been stolen or embezzled is taken
6from a pawnbroker, prior to any disposal of the property pursuant
7to Section 1411 of the Penal Code, the notice to be given to the
8owner and owner of a security interest pursuant to Section 1411
9shall be given to the pawnbroker. Such property shall not be
10disposed of pursuant to Section 1411 until three months after such
11notice has been given.

12(d) A pawnbroker shall not be liable to any person for any
13property seized from the pawnbroker on account of the
14pawnbroker’s inability to return the property to that person because
15of the seizure.

16

SEC. 5.  

Section 1411 of the Penal Code is amended to read:

17

1411.  

begin insert(a)end insertbegin insertend insert If the ownership of the property stolen or embezzled
18and the address of the owner, and the address of the owner of a
19security interest therein, can be reasonably ascertained, the peace
20officer who took custody of the property shall notify the owner,
21and a person having a security interest therein, by letter of the
22location of the property and the method by which the owner may
23obtain it. This notice shall be given upon the conviction of a person
24for an offense involving the theft, embezzlement, or possession of
25the property, or if a conviction was not obtained, upon the making
26of a decision by the district attorney not to file the case or upon
27the termination of the proceedings in the case. Except as provided
28in Section 217 of the Welfare and Institutions Code, if the property
29stolen or embezzled is not claimed by the owner before the
30expiration of three months after the giving of this notice, or, in any
31case in which such a notice is not given, before the expiration of
32six months from the conviction of a person for an offense involving
33the theft, embezzlement, or possession of the property, or if a
34conviction was not obtained, then from the time the property came
35into the possession of the peace officer or the case involving the
36person from whom it was obtained is disposed of, whichever is
37later, the magistrate or other officer having it in custody may, on
38the payment of the necessary expenses incurred in its preservation,
39deliver it to the county treasurer or other proper county officer, by
40whom it shall be sold and the proceeds paid into the county
P14   1treasury. However,begin delete notwithstanding any other provision of law,end delete if
2the person from whom custody of the property was taken is a
3secondhand dealer or licensed pawnbroker and reasonable but
4unsuccessful efforts have been made to notify the owner of the
5property and the property is no longer needed for the criminal
6proceeding, the property shall be returned to the secondhand dealer
7or pawnbroker who had custody of the property and be treated as
8regularly acquired property. If the property is transferred to the
9county purchasing agent it may be sold in the manner provided by
10Article 7 (commencing with Section 25500) of Chapter 5 of Part
112 of Division 2 of Title 3 of the Government Code for the sale of
12surplus personal property. If the county officer determines that
13any of the property transferred to him or her for sale is needed for
14a public use, the property may be retained by the county and need
15not be sold. The magistrate or other officer having the property in
16custody may, however, provide for the sale of the property in the
17manner provided for the sale of unclaimed property which has
18been held for at least three months pursuant to Section 2080.4 of
19the Civil Code.

begin insert

20(b) This section shall not govern the disposition of property
21placed on hold pursuant to Section 21647 of the Business and
22Professions Code, notwithstanding the current custodial status of
23the property, unless the licensed pawnbroker or secondhand dealer,
24after receipt of the written advisement required by subdivision (h)
25of Section 21647 of the Business and Professions Code, willfully
26refuses to consent to a statutory hold as provided by Section 21647
27of the Business and Professions Code or a search warrant for the
28business of the licensed pawnbroker or secondhand dealer has
29resulted in the seizure of the property subject to this section.

end insert
30

SEC. 6.  

Section 11108.5 of the Penal Code is amended to read:

31

11108.5.  

(a) If a law enforcement agency identifies serialized
32propertybegin insert or any property reported pursuant to Section 21628 of
33the Business and Professions Codeend insert
that has been reported lost or
34stolen by the owner or a person entitled to possession of the
35property and the property has been entered into the appropriate
36Department of Justice automated property system pursuant to
37Section 11108, the agency shall notify the owner or person
38begin insert claiming to beend insert entitled to possession of the property of the location
39of the property within 15 days of making the identification. If the
40location of the property was reported by a licensed pawnbroker or
P15   1secondhand dealer pursuant to Section 21630 of the Business and
2Professions Code,begin insert notwithstanding the method by which the
3property was identified,end insert
notice shall be given to the party who
4reported the property lost or stolen pursuant to Section 21647 of
5the Business and Professions Code.

6(b) If the property is in the custody of the law enforcement
7agency and it is determined that the property is no longer required
8for use as evidence in a criminal case, the property shall be made
9available to the person entitled to possession pursuant to Section
101417.5begin insert or if the property was found in the possession of a licensed
11pawnbroker or secondhand dealer, pursuant to Section 21647 of
12the Business and Professions Codeend insert
.

13(c) Subdivision (a) shall not apply to the return to an owner of
14a lost or stolen vehicle, as defined in Section 670 of the Vehicle
15Code.

16

SEC. 7.  

No reimbursement is required by this act pursuant to
17Section 6 of Article XIII B of the California Constitution because
18the only costs that may be incurred by a local agency or school
19district will be incurred because this act creates a new crime or
20infraction, eliminates a crime or infraction, or changes the penalty
21for a crime or infraction, within the meaning of Section 17556 of
22the Government Code, or changes the definition of a crime within
23the meaning of Section 6 of Article XIII B of the California
24Constitution.



O

    99