BILL NUMBER: SB 762 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Hill
FEBRUARY 22, 2013
An act to amend Sections 21646 and 21647 of, and to add
Section 21645.1 to, Section 21647 of the
Business and Professions Code, to amend Section 21206.8 of the
Financial Code, and to amend Sections 1411
186.2, 186.8, 1411, and 11108.5 of the Penal Code, relating to
secondhand goods, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 762, as amended, Hill. Secondhand goods : lost, stolen, or
embezzled items .
(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 make operating a secondhand business without being
licensed a "criminal profiteering activity" and would include the
unlicensed operation of a secondhand dealer without reporting
acquisitions as required by existing law within the definition of
"organized crime."
(2) Existing law, the California Control of Profits of Organized
Crime Act, defines criminal profiteering as any act committed or
attempted, or any threat made for financial gain or advantage, that
may be charged as a crime under specified provisions. Under existing
law, property and assets acquired or received in exchange for the
proceeds immediately derived from the pattern of criminal
profiteering activity are subject to forfeit. The money proceeds from
that forfeiture are distributed as prescribed.
This bill would prescribe that funds derived from a forfeiture of
lost, stolen, or embezzled items seized from a pawnbroker or
secondhand dealer be distributed 45% to initiating law enforcement
agency, 45% to prosecuting attorney's office, and 10% to the
Restitution Fund, a continuously appropriated fund, thereby making an
appropriation.
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)
(3) 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 authorize a peace officer to
also place a hold on stolen property,
property that the officer has probable cause to believe is lost
or embezzled or to seize the property, as specified, limit the
provisions to licensed pawnbrokers and secondhand dealers, revise
notification procedures regarding lost or
lost, stolen , or embezzled property, and require a
person claiming ownership of allegedly stolen or embezzled
the 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. This bill would
require law enforcement to return seized property at the conclusion
of the criminal proceedings. This bill would also authorize the
issuance of a search warrant in specified circumstances, including
where the property is being concealed by a pawnbroker who is the
subject of a criminal investigation or if a pawnbroker or secondhand
dealer refuses to honor the hold upon request of a peace officer.
(3)
(4) 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:
SECTION 1. Section 21645.1 is added to the
Business and Professions Code, to read:
21645.1. (a) The Legislature hereby finds and declares that an
effective means of punishing and deterring the unlicensed practice of
dealing in secondhand tangible personal property, including, but not
limited to, gold jewelry, platinum jewelry, and sterling silver, and
to further effectuate the legislative intent of Section 21625, is
through the forfeiture of property acquired and accumulated by a
person who is required to be licensed pursuant to this article but is
found to be in violation of Section 21640. The provisions of this
section are intended to be in addition to the penalty provisions of
Section 21645.
(b) A person conducting business as a secondhand dealer, as
defined in Section 21626, shall provide a valid license issued under
this article to any peace officer upon demand.
(c) (1) If a person, after being convicted of operating an
unlicensed secondhand business at any time within the preceding five
years or after being issued a written warning within the preceding 12
months that the business must be licensed under this article, is
found buying secondhand tangible personal property from the public
and is unable to provide a valid secondhand dealer license issued
under this article on the demand of a peace officer as required by
subdivision (b), the peace officer may impound all secondhand
tangible personal property and any currency in an amount not to
exceed twenty-five thousand dollars ($25,000) found in the possession
or under the control of the person if, upon examination, the peace
officer has probable cause to believe the secondhand tangible
personal property or currency was acquired while the person was
operating as a secondhand dealer without being licensed, unless the
peace officer is reasonably able, by other means, to verify that the
person was properly licensed at the time the person acquired the
secondhand tangible personal property or currency.
(2) A peace officer shall not impound the secondhand tangible
personal property or any currency pursuant to this subdivision if
there is credible evidence establishing all of the following:
(A) The person conducting business as a secondhand dealer provides
documentation indicating that he or she held a valid secondhand
dealer license for that location at any time within the preceding 90
days, unless the license was terminated by the issuing agency and the
person was provided notice of termination.
(B) The person required to be licensed pursuant to this article
recorded and reported the acquisition of secondhand tangible personal
property pursuant to Section 21628.
(3) A peace officer may exercise discretion with respect to
impoundment under this subdivision if the person can establish that
he or she is an employee of a person required to be licensed under
this article, the employer is not present, and the person conducting
business as a secondhand dealer does not have management or control
of, or a financial interest in, the business for which a secondhand
dealer license is required under this article.
(4) A peace officer shall serve the person from whom secondhand
tangible personal property or currency is taken pursuant to this
subdivision with a notice specifying the requirements set forth in
subdivision (d), the right of the impounding agency to sell the
secondhand tangible personal property and forfeit the currency if the
requirements of subdivision (d) are not met within the statutory
time, and the right of the person from whom the secondhand tangible
personal property or currency is taken to challenge any sale or
forfeiture following service of the notice of forfeiture required
under subdivision (g). Within five days after the impoundment, the
peace officer shall also serve on the person from whom the secondhand
tangible personal property or currency is taken, and any secured
creditor, a notice advising those parties that they are entitled to a
postimpoundment hearing before the impounding agency within 30 days
after the service of the postimpoundment hearing notice. A person
from whom secondhand tangible personal property or currency is taken
may challenge the results of the postimpoundment hearing in the
appropriate court.
(d) Any secondhand tangible personal property or currency
impounded pursuant to subdivision (c) shall be stored for a period
not exceeding 90 days by the impounding officer, and shall be
available to be redeemed when both of the following conditions have
been satisfied:
(1) The person from whom the secondhand tangible personal property
or currency was taken has obtained or otherwise produced a valid
secondhand dealer license for the business as required under this
article.
(2) The reports of acquisition of secondhand tangible personal
property as required by Section 21628 have been completed for all of
the secondhand tangible personal property that was impounded.
(e) Storage charges shall be imposed for the secondhand tangible
personal property impounded under this section in accordance with
Section 21200.6 of the Financial Code.
(f) If after 60 days from the date of the impoundment the person
from whom the secondhand tangible personal property or currency was
taken has failed to satisfy the requirements of subdivision (d), the
impounding agency shall do all of the following:
(1) If the name of the seller, seller's identification, and
description of the secondhand tangible personal property is known,
the agency shall prepare the report of acquisition of secondhand
tangible personal property for all impounded property as required by
Section 21628 or verify that the report was duly transmitted to the
Department of Justice.
(2) Notify the district attorney or city attorney of the
impoundment and request a notice of forfeiture.
(g) The district attorney or city attorney shall serve on the
person from whom the secondhand tangible personal property or
currency was taken and on any secured creditor a notice of forfeiture
for all or part of the secondhand tangible personal property or
currency. The notice shall be issued by registered mail on or after
the 65th day following the impoundment. The notice shall state that
the person served with the notice of forfeiture has 15 calendar days
from the date of the mailing of the notice to file a claim. A secured
creditor located outside the State of California shall be allowed an
additional five days to file a claim. The notice shall identify the
name and address of the district attorney or city attorney who is
authorized to prosecute the forfeiture action and to receive
objections. If no claim has been received after service of the notice
of forfeiture, the impounding agency may sell the secondhand
tangible personal property to the highest bidder at a noticed, public
sale.
(h) If the district attorney or city attorney issuing the notice
of forfeiture does not receive a claim within the time limit provided
in subdivision (g), the district attorney or city attorney shall
sign and record with the county recorder a notice of forfeiture. A
written declaration of forfeiture by the district attorney or city
attorney shall be deemed to provide good and sufficient title to the
forfeited property or currency. Any property or currency impounded
but not forfeited shall be returned to the person from whom it was
taken within 90 days of the impoundment.
(i) (1) If the district attorney or city attorney receives a
timely claim, the district attorney or city attorney shall file a
petition for forfeiture within 10 days of receiving the claim with
the appropriate court hearing any criminal action brought under
Section 21640 or 21645. The district attorney or city attorney shall
establish an expedited hearing date in accordance with instructions
from the court and the court shall hear the matter without delay. A
fee of one hundred dollars ($100) shall be paid by any claimant but
shall be reimbursed by the impounding agency if the claimant
prevails. To the extent practicable, the civil and criminal cases, if
a criminal complaint is filed against the person who is accused of
operating as an unlicensed secondhand dealer, shall be heard at the
same time in an expedited, consolidated proceeding. A proceeding in
the civil case is a limited civil case.
(2) The fee shall be distributed equally between the district
attorney or city attorney filing the action and the Trial Court Trust
Fund.
(3) The burden of proof in the civil case shall be on the person
from whom the secondhand tangible personal property or currency was
taken to prove by a preponderance of the evidence that the secondhand
tangible personal property or currency has been acquired when the
person from whom it was seized was properly licensed under this
article and that the acquisition of the secondhand tangible personal
property or currency was duly reported pursuant to Section 21628. All
questions that may arise shall be decided and all other proceedings
shall be conducted as in an ordinary civil action.
(4) A judgment of forfeiture does not require as a condition
precedent the conviction of a defendant of an offense under this
article.
(5) The filing of a claim within the time limit specified in
subdivision (g) is a jurisdictional prerequisite for the availing of
the action authorized by that subdivision.
(j) All right, title, and interest in the secondhand tangible
personal property or currency shall vest in the impounding agency
upon commission of the act giving rise to the forfeiture. However,
the secondhand tangible personal property or currency shall not be
subject to forfeiture or sale until all court challenges are
resolved.
(k) Any secondhand tangible personal property that is not redeemed
pursuant to subdivision (d) and is subsequently forfeited pursuant
to a notice of forfeiture or a judgment of forfeiture shall be sold
to the highest bidder at a noticed, public sale. The notice shall be
published in a local paper of general jurisdiction nearest the
impounding agency within 10 days after that agency receives the
notice or judgment of forfeiture.
(l) The proceeds of any sale provided for pursuant to subdivision
(k) or the forfeiture of currency shall be distributed in the
following order:
(1) First to the impounding agency to satisfy the storage charge
provided in subdivision (e), if any.
(2) Second, to any secured creditor to satisfy the indebtedness of
the person from whom the secondhand tangible personal property or
currency was taken.
(3) Third, funds shall be made available to pay any local agency
and court costs that are reasonably related to the implementation of
this section and that remain unsatisfied.
(4) Of the remaining proceeds, 10 percent shall be deposited into
the Restitution Fund, 45 percent into the general fund of the city or
county or city and county that instituted the forfeiture, and 45
percent into the county or city and county in which the forfeiture
occurred.
(m) For purposes of this section, "secondhand tangible personal
property" shall mean and refer to gold, silver, platinum, palladium,
and jewelry made of gold, silver, platinum, palladium, or having any
diamond, ruby, emerald, or other precious stone, or any item
containing sterling or fine silver.
SEC. 2. Section 21646 of the Business and
Professions Code is amended to read:
21646. The district attorney or the Attorney General, in the name
of the people of the State of California, may bring an action to
enjoin the violation or the threatened violation of any provision of
this article or of any regulation made pertaining to the provisions
of this article. A nonprofit association composed of 50 or more
licensed pawnbrokers or secondhand dealers may bring an action to
enjoin a person from conducting business as a secondhand dealer
without being licensed as provided in this article. Any proceeding
brought hereunder shall be governed in all respects by the provisions
of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of
the Code of Civil Procedure. In the case of a nonprofit association
bringing an action to enjoin a person from conducting business as a
secondhand dealer without being licensed, if the association prevails
and confers a public benefit by receiving an injunction, it shall be
awarded its reasonable attorney's fees and costs of suit.
SEC. 3. SECTION 1. Section 21647 of
the Business and Professions Code is amended to read:
21647. (a) Whenever any If a peace
officer has probable cause to believe that property, except coins,
monetized bullion, or "commercial grade ingots" as defined in
subdivision (d) of Section 21627, in the possession of a licensed
pawnbroker or secondhand dealer is lost, stolen, or
embezzled, the peace officer shall may
place a hold on the property for a period not to exceed 90
days. When a peace officer places a hold on the property, the peace
officer shall give the licensed pawnbroker or secondhand dealer a
written notice at the time the hold is placed, describing the item or
items to be held. During that period the peace officer may take
custody of the property as evidence or leave
it with the licensed pawnbroker or secondhand dealer. If the peace
officer placing the hold leaves the item with the licensed
pawnbroker or secondhand dealer , that pawnbroker or
secondhand dealer shall not release or dispose of the property,
except pursuant to a court order or upon receipt of a written
authorization signed by any peace officer who is a member of the law
enforcement agency of which the peace officer placing the hold on the
property is a member. A licensed pawnbroker or secondhand dealer
shall is not be
subject to civil liability for compliance with this section.
(b) (1) Whenever property that is in the possession of a licensed
pawnbroker or secondhand dealer, and that has been placed on hold
pursuant to this section, is required by a peace officer in a
criminal investigation, the licensed pawnbroker or secondhand dealer,
upon reasonable notice, shall produce the property at reasonable
times and places or may deliver the property to the peace officer
upon the request of any peace officer.
(2) If property placed on hold pursuant to this section is
physically surrendered or delivered to a law enforcement
agency during the period of the hold, the hold and the
pawnbroker's lien against the property shall continue. Upon
termination of criminal proceedings for which the property was placed
on hold, the property shall be returned to the licensed
pawnbroker from whom it was taken for disposition provided under
subdivision (d).
(c) Whenever a law enforcement agency has knowledge that property
in the possession of a licensed pawnbroker or secondhand dealer has
been reported as lost or stolen, lost,
stolen, or embezzled, the law enforcement agency shall, within
two business days after placing the hold on the property pursuant to
this section, notify in writing the person who reported the property
as lost or lost, stolen ,
or embezzled of the following:
(1) The name, address, and telephone number of the licensed
pawnbroker or secondhand dealer who reported the acquisition of the
property.
(2) That the law neither requires nor prohibits payment of a fee
or any other condition in return for the surrender of the property,
except that when the person who reported the property lost
or stolen lost, stolen, or embezzled does not
choose to participate in the prosecution of an identified alleged
thief, the person shall pay the licensed pawnbroker or secondhand
dealer the "out-of-pocket" expenses paid in the acquisition of the
property in return for the surrender of the property.
(3) That if the person who reported the property as lost
or stolen lost, stolen, or embezzled takes no
action to recover the property from the licensed pawnbroker or
secondhand dealer within 60 days of the mailing of the notice, the
licensed pawnbroker or secondhand dealer may treat the property as
other property received in the ordinary course of business. During
the 60-day notice period, the licensed pawnbroker or secondhand
dealer may not release the property to any other person.
(4) That a copy of the notice, with the address of the person who
reported the property as lost or stolen lost,
stolen, or embezzled deleted, will be mailed to the licensed
pawnbroker or secondhand dealer who is in possession of the property.
(d) When property that is in the possession of a licensed
pawnbroker or secondhand dealer is subject to a hold as provided in
subdivision (a), and the property is no longer required for the
purpose of a criminal investigation, the law enforcement agency that
placed the hold on the property shall release the hold on the
property . When the law enforcement agency has knowledge
that the property has been reported lost or stolen, the law
enforcement agency shall then make notification to the person who
reported the property as lost or stolen pursuant to subdivision (c)
and return the property to the licensed pawnbroker or
secondhand dealer from which it was taken if the agency took physical
possession of the property .
(e) If a pledgor seeks to redeem property that is subject to a
hold, the licensed pawnbroker shall advise the pledgor of
the name of the peace officer who placed the hold on the property and
the name of the law enforcement agency of which the officer is a
member. If the property is not required to be held pursuant to a
criminal prosecution the hold shall be released.
(f) Whenever information regarding allegedly lost or
stolen lost, stolen, or embezzled property is
entered into the Department of Justice automated property system or
automated firearms system, and the property is thereafter identified
and found to be in the possession of a licensed pawnbroker or
secondhand dealer, the property shall be placed on a hold pursuant to
this section and Section 11108.5 of the Penal Code.
(g) If the hold, including any additional hold, is allowed to
lapse, or 60 days elapse following the delivery of the notice
required to be given by subdivision (c) of this section
to the person who reported the property to be lost
or stolen lost, stolen, or embezzled without a
claim being made by that person, whichever is later, the licensed
pawnbroker or secondhand dealer may mail under a Certificate
certificate of Mailing
mailing issued by the United States Post Office, addressed to
the law enforcement agency that placed the property on hold, a
written request to delete the property listing from the Department of
Justice automated property system or automated firearms system, as
is applicable. Within 30 days after the request has been mailed, the
law enforcement agency shall either cause the property listing to be
deleted as requested or place a hold on the property. If no law
enforcement agency takes any further action with respect to the
property within 45 days after the mailing of the request, the
licensed pawnbroker or secondhand dealer may presume that the
property listing has been deleted as requested and may thereafter
deal with the property accordingly, and shall not be subject to
liability arising from the failure of the removal of the property
listing from the Department of Justice automated property system or
automated firearms system.
(h) A licensed pawnbroker or secondhand dealer shall not refuse a
request to place property in their possession on hold pursuant to
this section when a peace officer has probable cause to believe the
property is stolen lost, stolen,
or embezzled . If a licensed pawnbroker or secondhand dealer
refuses a request to place property on hold pursuant to this section,
after being provided written notice of the provisions of this
section, the property may be seized with or without a warrant. The
peace officer shall issue a receipt receipt,
as described in Section 21206.7 of the Financial Code, left
with the licensed pawnbroker or secondhand dealer. The property shall
be disposed of pursuant to procedures set forth in Section 21206.8
of the Financial Code, which shall apply to both licensed pawnbrokers
and secondhand dealers under this section.
(i) A search warrant shall not be issued for the search of the
business of a licensed pawnbroker or secondhand dealer, unless the
application by the peace officer discloses and the court so
concludes that eithe r (1) the evidence sought to be
secured by the search warrant is sought for its evidentiary value
other than being property that is lost, stolen, or embezzled; (2)
the peace officer's prior efforts taken to utilize the hold
procedures set forth in this section and
establishes to the issuing magistrate's court'
s satisfaction that the licensed pawnbroker or secondhand
dealer has refused to voluntarily surrender the stolen
lost, stolen, or embezzled property,
property; or that (3) there is
probable cause to believe that the stolen
lost, stolen, or embezzled property is willfully being
concealed by the licensed pawnbroker or secondhand dealer and that
any notice required by this section would frustrate the criminal
investigation of the licensed pawnbroker or secondhand dealer.
(j) If a civil or criminal court is called upon to adjudicate the
competing claims of a licensed pawnbroker or secondhand dealer and
another party claiming ownership or an interest in the property that
is or was subject to a hold pursuant to this section, the court shall
award possession of the property only after due consideration is
given to the effect of Section 2403 of the Commercial Code.
SEC. 4. SEC. 2. Section 21206.8 of
the Financial Code is amended to read:
21206.8. (a) Notwithstanding the provisions of Chapter 12
(commencing with Section 1407) of Title 10 of Part 2 of the Penal
Code, whenever property alleged to have been lost, stolen, or
embezzled is taken from a pawnbroker, the peace officer, magistrate,
court, clerk, or other person having custody of the property shall
not deliver the property to any person claiming ownership unless the
provisions of this section are complied with.
(b) (1) If any person makes a claim of ownership, the person shall
file a written statement, signed under penalty of perjury, stating
the factual basis upon which they claim ownership or an interest in
the property with the person having custody of the property, and the
person having custody of the property shall notify the pawnbroker of
the claim by providing a true and correct copy of the claim to the
pawnbroker.
(2) If the pawnbroker makes no claim with respect to the property
within 10 days of such notification, the property may be disposed of
as otherwise provided by law.
(3) In adjudicating the competing claims of a pawnbroker and a
person claiming ownership or an interest in the property seized from
a pawnbroker, the magistrate or the person having custody of
the property adjudicating court shall give due
consideration to the effect Section 2403 of the Commercial Code may
have on the claims.
(4) At least 30 calendar days before any hearing adjudicating any
competing claims of a pawnbroker and a person claiming ownership or
an interest in the property, the person having custody of the
property shall deliver to the pawnbroker a true and correct copy of
the police report substantiating the basis of the seizure of the
property from the pawnbroker.
(c) If property alleged to have been stolen or embezzled is taken
from a pawnbroker, prior to any disposal of the property pursuant to
Section 1411 of the Penal Code, the notice to be given to the owner
and owner of a security interest pursuant to Section 1411 shall be
given to the pawnbroker. Such property shall not be disposed of
pursuant to Section 1411 until three months after such notice has
been given.
(d) A pawnbroker shall not be liable to any person for any
property seized from the pawnbroker on account of the pawnbroker's
inability to return the property to that person because of the
seizure.
SEC. 3. Section 186.2 of the Penal Code
is amended to read:
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery,
as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section 236.1.
(29) Any crime in which the perpetrator induces, encourages, or
persuades a person under 18 years of age to engage in a commercial
sex act. For purposes of this paragraph, a commercial sex act means
any sexual conduct on account of which anything of value is given or
received by any person.
(30) Any crime in which the perpetrator, through force, fear,
coercion, deceit, violence, duress, menace, or threat of unlawful
injury to the victim or to another person, causes a person under 18
years of age to engage in a commercial sex act. For purposes of this
paragraph, a commercial sex act means any sexual conduct on account
of which anything of value is given or received by any person.
(31) Theft of personal identifying information, as defined in
Section 530.5.
(32) Offenses involving the theft of a motor vehicle, as specified
in Section 10851 of the Vehicle Code.
(33) Abduction or procurement by fraudulent inducement for
prostitution, as defined in Section 266a.
(34) Buying, selling, trading, accepting for sale on consignment,
accepting for auctioning, or auctioning secondhand tangible personal
property as defined by Section 21627 of the Business and Professions
Code, including, but not limited to, gold, silver, platinum,
palladium, and jewelry made of gold, silver, platinum, palladium, or
having any diamond, ruby, emerald, or other precious stone, or any
item containing sterling or fine silver without being licensed
pursuant to Section 21640 of the Business and Professions Code.
(b) (1) "Pattern of criminal profiteering activity" means engaging
in at least two incidents of criminal profiteering, as defined by
this chapter, that meet the following requirements:
(A) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(B) Are not isolated events.
(C) Were committed as a criminal activity of organized crime.
(2) Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution,
loan-sharking, gambling, and pornography, or that, through planning
and coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized crime" also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code, and
the theft of personal identifying information, as defined in Section
530.5. "Organized crime" also means the violation of Section
21640 of the Business and Professions Code while not reporting
acquisitions of secondhand property as required by Section 21628 of
the Business and Professions Code.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 4. Section 186.8 of the Penal Code
is amended to read:
186.8. Notwithstanding that no response or claim has been filed
pursuant to Section 186.5, in all cases where property is forfeited
pursuant to this chapter and, if 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 holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover all
those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to an
additional 60 days to ensure that all valid claims are received and
processed.
(b) To the Department of General Services 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
repairs, storage, or transportation of any property seized under this
chapter.
(c) To the General Fund of the state or a general fund of a local
governmental entity, whichever prosecutes.
(d) In any case involving a violation of subdivision (b) of
Section 311.2, or Section 311.3 or 311.4, in lieu of the distribution
of the proceeds provided for by subdivisions (b) and (c), the
proceeds shall be deposited in the county children's trust fund,
established pursuant to Section 18966 of the Welfare and Institutions
Code, of the county that filed the petition of forfeiture. If the
county does not have a children's trust fund, the funds shall be
deposited in the State Children's Trust Fund, established pursuant to
Section 18969 of the Welfare and Institutions Code.
(e) In any case involving crimes against the state beverage
container recycling program, in lieu of the distribution of proceeds
provided in subdivision (c), the proceeds shall be deposited in the
penalty account established pursuant to subdivision (d) of Section
14580 of the Public Resources Code, except that a portion of the
proceeds equivalent to the cost of prosecution in the case shall be
distributed to the local prosecuting entity that filed the petition
of forfeiture.
(f) (1) In any case described in paragraph (29) or (30) of
subdivision (a) of Section 186.2, or paragraph (33) of subdivision
(a) of Section 186.2 where the victim is a minor, in lieu of the
distribution provided for in subdivision (c), the proceeds shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs under Section
13837. Fifty percent of the funds deposited in the Victim-Witness
Assistance Fund pursuant to this subdivision shall be granted to
community-based organizations that serve minor victims of human
trafficking.
(2) Notwithstanding paragraph (1), any proceeds specified in
paragraph (1) that would otherwise be distributed to the General Fund
of the state under subdivision (c) pursuant to a paragraph in
subdivision (a) of Section 186.2 other than paragraph (29) or (30) of
subdivision (a) of Section 186.2, or paragraph (33) of subdivision
(a) of Section 186.2 where the victim is a minor, shall, except as
otherwise required by law, continue to be distributed to the General
Fund of the state as specified in subdivision (c).
(g) In any case described in paragraph (34) of subdivision (a) of
Section 186.2, in lieu of the distribution provided for in
subdivision (c), the proceeds shall be distributed in the following
manner: (1) 45 percent shall be distributed into the general fund of
the city, county, or city and county that instituted the forfeiture,
(2) 45 percent shall be distributed to the general fund of the city,
county, or city and county that prosecuted the forfeiture, and (3) 10
percent shall be distributed to the Restitution Fund.
SEC. 5. Section 1411 of the Penal Code is amended to read:
1411. (a) If the ownership of the property stolen or embezzled
and the address of the owner, and the address of the owner of a
security interest therein, can be reasonably ascertained, the peace
officer who took custody of the property shall notify the owner, and
a person having a security interest therein, by letter of the
location of the property and the method by which the owner may obtain
it. This notice shall be given upon the conviction of a person for
an offense involving the theft, embezzlement, or possession of the
property, or if a conviction was not obtained, upon the making of a
decision by the district attorney not to file the case or upon the
termination of the proceedings in the case. Except as provided in
Section 217 of the Welfare and Institutions Code, if the property
stolen or embezzled is not claimed by the owner before the expiration
of three months after the giving of this notice, or, in any case in
which such a notice is not given, before the expiration of six months
from the conviction of a person for an offense involving the theft,
embezzlement, or possession of the property, or if a conviction was
not obtained, then from the time the property came into the
possession of the peace officer or the case involving the person from
whom it was obtained is disposed of, whichever is later, the
magistrate or other officer having it in custody may, on the payment
of the necessary expenses incurred in its preservation, deliver it to
the county treasurer or other proper county officer, by whom it
shall be sold and the proceeds paid into the county treasury.
However, notwithstanding any other law, if the
person from whom custody of the property was taken is a secondhand
dealer or licensed pawnbroker and reasonable but unsuccessful efforts
have been made to notify the owner of the property and the property
is no longer needed for the criminal proceeding, the property shall
be returned to the secondhand dealer or pawnbroker who had custody of
the property and be treated as regularly acquired property. If the
property is transferred to the county purchasing agent it may be sold
in the manner provided by Article 7 (commencing with Section 25500)
of Chapter 5 of Part 2 of Division 2 of Title 3 of the Government
Code for the sale of surplus personal property. If the county officer
determines that any of the property transferred to him or her for
sale is needed for a public use, the property may be retained by the
county and need not be sold. The magistrate or other officer having
the property in custody may, however, provide for the sale of the
property in the manner provided for the sale of unclaimed property
which has been held for at least three months pursuant to Section
2080.4 of the Civil Code.
(b) This section shall not govern the disposition of property
placed on hold pursuant to Section 21647 of the Business and
Professions Code, notwithstanding the current custodial status of the
property, unless the licensed pawnbroker or secondhand dealer, after
receipt of the written advisement required by subdivision (h) of
Section 21647 of the Business and Professions Code, willfully refuses
to consent to a statutory hold as provided by Section 21647 of the
Business and Professions Code or a search warrant for the business of
the licensed pawnbroker or secondhand dealer has resulted in the
seizure of the property subject to this section.
SEC. 6. Section 11108.5 of the Penal Code is amended to read:
11108.5. (a) If a law enforcement agency identifies serialized
property or any property reported pursuant to Section 21628 of the
Business and Professions Code that has been reported lost or stolen
by the owner or a person entitled to possession of the property and
the property has been entered into the appropriate Department of
Justice automated property system pursuant to Section 11108, the
agency shall notify the owner or person claiming to be entitled to
possession of the property of the location of the property within 15
days of making the identification. If the location of the property
was reported by a licensed pawnbroker or secondhand dealer pursuant
to Section 21630 of the Business and Professions Code,
notwithstanding the method by which the property was identified,
notice shall be given to the party who reported the property lost or
stolen pursuant to Section 21647 of the Business and Professions
Code.
(b) If the property is in the custody of the law enforcement
agency and it is determined that the property is no longer required
for use as evidence in a criminal case, the property shall be made
available to the person entitled to possession pursuant to Section
1417.5 or if the property was found in the possession of a licensed
pawnbroker or secondhand dealer, pursuant to Section 21647 of the
Business and Professions Code.
(c) Subdivision (a) shall not apply to the return to an owner of a
lost or stolen vehicle, as defined in Section 670 of the Vehicle
Code if the report of theft or loss of the vehicle into the
automated property system preceded the report of the acquisition of
property as set forth in Section 21628 of the Business and
Professions Code by a licensed pawnbroker .
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.