BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 443


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          ASSEMBLY THIRD READING


          AB  
          443 (Alejo)


          As Amended  May 4, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                  |Noes                |
          |----------------+------+----------------------+--------------------|
          |Public Safety   |4-0   |Quirk, Melendez,      |                    |
          |                |      |                      |                    |
          |                |      |                      |                    |
          |                |      |Jones-Sawyer, Lackey  |                    |
          |                |      |                      |                    |
          |----------------+------+----------------------+--------------------|
          |Appropriations  |14-0  |Gomez, Bigelow,       |                    |
          |                |      |Bloom, Bonta,         |                    |
          |                |      |Calderon, Chang,      |                    |
          |                |      |Eggman, Gallagher,    |                    |
          |                |      |Eduardo Garcia,       |                    |
          |                |      |Holden, Quirk,        |                    |
          |                |      |Rendon, Wagner, Wood  |                    |
          |                |      |                      |                    |
          |                |      |                      |                    |
           ------------------------------------------------------------------- 


          SUMMARY:  Permits prosecutors to seize assets and property of  
          individuals associated with transnational criminal organizations  
          up to 60 days prior to the filing of criminal charges pursuant to  
          criminal profiteering forfeiture proceedings.  Specifically, this  
          bill:  








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          1)Provides that the prosecuting agency may, prior to the  
            commencement of a criminal proceeding, file a petition of  
            forfeiture with the superior court of the county in which the  
            defendant will be charged with a criminal offense, which shall  
            allege that the defendant has engaged in a pattern of criminal  
            profiteering activity, including the acts or threats chargeable  
            as crimes and the property forfeitable, provided the court  
            determines that:
             a)   The value of the assets to be seized exceeds $100,000. 
             b)   There is a substantial probability that the prosecuting  
               agency will file a criminal complaint or seek a grand jury  
               indictment against the defendant.


             c)   There is a substantial probability that the prosecuting  
               agency will prevail on the issue of forfeiture and that  
               failure to enter the order will result in the property being  
               destroyed, removed from the jurisdiction of the court, or  
               otherwise made unavailable for forfeiture.


             d)   The need to preserve the availability of the property  
               through the entry of the requested order outweighs the  
               hardship on any party against whom the order is to be  
               entered.


             e)   There is a substantial probability that the assets subject  
               to forfeiture represent direct or indirect proceeds of  
               criminal activity committed for the benefit of, at the  
               direction of, or in association with, a transnational  
               criminal organization, as defined.


          2)Defines, for purposes of criminal profiteering forfeiture, a  
            "transnational criminal organization" as "any ongoing  
            organization, association, or group, having leaders, associates,  
            operations, or activities in more than one country, with one of  
            its primary activities being the commission of one or more  








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            specified criminal profiteering related acts."
          3)States that if a forfeiture petition is filed prior to the  
            filing of the complaint in a criminal action, the motion and any  
            injunctive order shall be dismissed by operation of law unless a  
            criminal complaint or grand jury indictment is filed within 60  
            days of the grant of the motion.  If a forfeiture petition is  
            dismissed pursuant to this subdivision, the motion shall not be  
            refiled, except upon the filing of a criminal complaint.


          4)Provides that if a forfeiture petition is filed prior to the  
            filing of the complaint in a criminal action, a person claiming  
            an interest in the property or proceeds may move for the return  
            of the property on the grounds that there is not probable cause  
            to believe the property is forfeitable and is not automatically  
            subject to court order of forfeiture or destruction by another  
            provision of this chapter.  The motion may be made prior to,  
            during, or subsequent to the filing of criminal charges or a  
            grand jury indictment.  If the prosecuting agency does not  
            establish a substantial probability that the property is subject  
            to forfeiture, the court shall order the seized property  
            released to the person it determines is entitled thereto.


          EXISTING LAW:  


          1)Establishes the "California Control Profits of Organized Crime  
            Act."  
          2)Declares that the Legislature finds and declares that an  
            effective means of punishing and deterring criminal activities  
            of organized crime is through the forfeiture of profits acquired  
            and accumulated as a result of such criminal activities.  It is  
            the intent of the Legislature that the "California Control of  
            Profits of Organized Crime Act" be used by prosecutors to punish  
            and deter only such activities.  


          3)Defines "criminal profiteering activity" as any act committed or  








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            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 offenses:  arson, bribery, child pornography or  
            exploitation, felonious assault, embezzlement, extortion,  
            forgery, gambling, kidnapping, mayhem, murder, pimping and  
            pandering, receiving stolen property, robbery, solicitation of  
            crimes, grand theft, trafficking in controlled substances,  
            violation of the laws governing corporate securities, specified  
            crimes involving obscenity, presentation of a false or  
            fraudulent claim, false or fraudulent activities, schemes, or  
            artifices, money laundering, offenses relating to the  
            counterfeit of a registered mark, offenses relating to the  
            unauthorized access to computers, computer systems, and computer  
            data, conspiracy to commit any of the crimes listed above,  
            offenses committed on behalf of a criminal street gang, offenses  
            related to fraud or theft against the state's beverage container  
            recycling program, human trafficking, any crime in which the  
            perpetrator induces, encourages, or persuades a person under 18  
            years of age to engage in a commercial sex act, 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, theft of personal  
            identifying information, offenses involving the theft of a motor  
            vehicle, abduction or procurement by fraudulent inducement for  
            prostitution. 


          4)Defines "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; and/or









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             c)   Were committed as a criminal activity of organized crime.


          5)Defines "organized crime" as a 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.   
            "Organized crime" also means false or fraudulent activities,  
            schemes, or artifices, as defined, and the theft of personal  
            identifying information, as defined.  
          6)States that the following assets of any person who is convicted  
            a specified underlying offense and of engaging in a pattern of  
            criminal profiteering activity are subject to forfeiture:


             a)   Any property interest whether tangible or intangible,  
               acquired through a pattern of criminal profiteering activity;  
               and  
             b)   All proceeds of a pattern of criminal profiteering  
               activity, which property shall include all things of value  
               that may have been received in exchange for the proceeds  
               immediately derived from the pattern of criminal profiteering  
               activity.  


          7)States that, notwithstanding that no response or claim has been  
            filed, in all cases where property is forfeited, as specified,  
            and, if necessary, sold by the Department of General Services  
            (DGS) or local governmental entity, the money forfeited or the  
            proceeds of sale shall be distributed by the state or local  
            governmental entity as follows:








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             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 lien holders 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 DGS 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, as  
               specified; and


             c)   To the State's General Fund or local governmental entity,  
               whichever prosecutes.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee:


          1)Unknown, probably minor impact to the courts.  


          2)Minor absorbable cost to the Department of Justice (DOJ).  The  
            assumption is made that DOJ will take the lead prosecutor role  
            in most transnational criminal organization cases.


          3)Unknown potential General Fund or local revenue if assets are  
            seized that would not have been available for seizure in the  
            absence of this bill, and are eventually forfeited.  The  
            frequency is unknown, but it would probably be in excess of  
            $100,000 if and when it occurs.










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          COMMENTS:  According to the author, "AB 443 seeks to empower a  
          prosecuting agency's ability to effectively dismantle criminal  
          organizations by targeting the proceeds of criminal activity while  
          respecting the due process rights of suspects, arrestees, and  
          criminal defendants.  


          "Specifically, AB 443 provides a prosecuting agency with the  
          ability to freeze criminal assets before the commencement of a  
          criminal proceeding.  Waiting until the filing of a criminal  
          proceeding to bring a petition for asset forfeiture brings the  
          risk of providing an early notification to the criminal  
          organization under investigation.  Criminal organizations benefit  
          from the early warning system by transferring or removing their  
          assets from the jurisdiction of the court.  While the criminal  
          proceeding may affect an individual in the criminal organization,  
          the criminal operations of these gangs can proceed as their funds  
          remain available. 


          "Although this tool allows for a forfeiture petition to be filed  
          before the filing of a criminal complaint, the bill includes  
          several safeguards to protect the due process rights of criminal  
          suspects, arrestees, and defendants.  The bill strikes an  
          appropriate line between these constitutional rights and the need  
          for protecting the public from organized crime.  Many of these  
          organizations are operating in cities throughout the state.


          "In addition, AB 443 aims to punish and deter the trafficking in  
          firearms and endangered species by adding these crimes to the  
          definition of 'criminal profiteering activity,' making the profits  
          of these crimes subject to forfeiture." 




          Analysis Prepared by:                                               
                          Gabriel Caswell / PUB. S. / (916) 319-3744  FN:  








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