BILL ANALYSIS Ó
AB 443
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ASSEMBLY THIRD READING
AB
443 (Alejo)
As Amended May 4, 2015
Majority vote
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|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 | |
| | | | |
| | | | |
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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:
AB 443
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