BILL NUMBER: SB 443 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 6, 2015
INTRODUCED BY Senator Mitchell
FEBRUARY 25, 2015
An act to amend 11471 of Sections 11470.1,
11488.4, 11489, and 11495 of, and to add Sections 11471.2 and
11488.7 to, the Health and Safety Code, relating to forfeiture.
LEGISLATIVE COUNSEL'S DIGEST
SB 443, as amended, Mitchell. Forfeiture: controlled substances.
Existing law subjects certain property to forfeiture, such as
controlled substances and equipment used to process controlled
substances. Existing law allows peace officers, under specified
circumstances, to seize property that is subject to forfeiture.
Existing law authorizes specified public agencies to bring an action
to recover expenses of seizing, eradicating, destroying, or taking
remedial action with respect to any controlled substance. In a
forfeiture action with regards to cash or negotiable instruments of a
value of not less than $25,000, existing law requires the state or
local agency to prove by clear and convincing evidence that the
property is subject to forfeiture. Existing law requires seized
property or the proceeds from the sale of that property to be
distributed among specified entities. Existing law
requires the Attorney General to publish a yearly report on
forfeiture within the state.
This bill would make a technical, nonsubstantive change to those
provisions.
This bill would require a prosecuting agency to seek or obtain a
criminal conviction for the unlawful manufacture or cultivation of
any controlled substance or its precursors prior to an entry of
judgment for recovery of expenses of seizing, eradicating,
destroying, or taking remedial action with respect to any controlled
substance. The bill would prohibit maintaining an action for recovery
of expenses against a person who has been acquitted of the
underlying criminal charges.
The bill would prohibit state or local law enforcement agencies
from transferring seized property to a federal agency seeking
adoption by the federal agency of the seized property. The bill would
also require that any property seized pursuant to any federal law
that authorizes the sharing or transfer of forfeited property be
distributed according to state law, thereby imposing a state-mandated
local program. The bill would further prohibit state or local
agencies from receiving specified seized property if a conviction for
the underlying offenses is not obtained or if federal law prohibits
distributing the proceeds or property received in accordance with
state law.
The bill would require notices of a forfeiture action to contain
additional details, such as the rights of an interested party at a
forfeiture hearing. The bill would require the court to appoint
counsel for the defendant in the forfeiture proceeding if a defendant
in a related criminal matter is represented by court-appointed
counsel, thereby creating a state-mandated local program. The bill
would change the burden of proof that a state or local law
enforcement agency must meet to succeed in a forfeiture action with
regards to cash or negotiable instruments of a value not less than
$25,000, from a clear and convicting standard to beyond a reasonable
doubt.
The bill would allow recovery of attorney's fees for defendants or
claimants in a forfeiture action who substantially prevail. The bill
would make specified changes to the distribution of proceeds from
forfeiture actions under state law, including reducing distributions
to seizing law enforcement agencies and prosecutor's offices, and
providing distributions to courts and public defenders in the
jurisdiction of the proceedings. The bill would also require the
Attorney General to include additional information on forfeiture
actions in the yearly report.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11470.1 of the
Health and Safety Code is amended to read:
11470.1. (a) The expenses of seizing, eradicating, destroying, or
taking remedial action with respect to, any controlled substance or
its precursors shall be recoverable from:
(1) Any person who manufactures or cultivates a controlled
substance or its precursors in violation of this division.
(2) Any person who aids and abets or who knowingly profits in any
manner from the manufacture or cultivation of a controlled substance
or its precursors on property owned, leased, or possessed by the
defendant, in violation of this division.
(b) The expenses of taking remedial action with respect to any
controlled substance or its precursors shall also be recoverable from
any person liable for the costs of that remedial action under
Chapter 6.8 (commencing with Section 25300) of Division 20 of the
Health and Safety Code.
(c) It shall not be necessary to seek or obtain
a criminal conviction for the unlawful manufacture or
cultivation of any controlled substance or its precursors prior
to the entry of judgment for the recovery of expenses.
However, if If criminal charges are pending
against the defendant for the unlawful manufacture or cultivation of
any controlled substance or its precursors, an action brought
pursuant to this section shall, upon a defendant's request, be
continued while the criminal charges are pending.
(d) The action may be brought by the district attorney, county
counsel, city attorney, the State Department of Health Services, or
Attorney General. All expenses recovered pursuant to this section
shall be remitted to the law enforcement agency which incurred them.
(e) (1) The burden of proof as to liability shall be on the
plaintiff and shall be by a preponderance of the evidence in an
action alleging that the defendant is liable for expenses pursuant to
paragraph (1) of subdivision (a). The burden of proof as to
liability shall be on the plaintiff and shall be by clear and
convincing evidence in an action alleging that the defendant is
liable for expenses pursuant to paragraph (2) of subdivision (a). The
burden of proof as to the amount of expenses recoverable shall be on
the plaintiff and shall be by a preponderance of the evidence in any
action brought pursuant to subdivision (a).
(2) Notwithstanding paragraph (1), for any person convicted of a
criminal charge of the manufacture or cultivation of a controlled
substance or its precursors there shall be a presumption affecting
the burden of proof that that person is liable.
(f) Only expenses which meet the following requirements shall be
recoverable under this section:
(1) The expenses were incurred in seizing, eradicating, or
destroying the controlled substance or its precursors or in taking
remedial action with respect to a hazardous substance. These expenses
may not include any costs incurred in use of the herbicide paraquat.
(2) The expenses were incurred as a proximate result of the
defendant's manufacture or cultivation of a controlled substance in
violation of this division.
(3) The expenses were reasonably incurred.
(g) For purposes of this section, "remedial action" shall have the
meaning set forth in Section 25322.
(h) For the purpose of discharge in bankruptcy, a judgment for
recovery of expenses under this section shall be deemed to be a debt
for willful and malicious injury by the defendant to another entity
or to the property of another entity.
(i) Notwithstanding Section 526 of the Code of Civil Procedure,
the plaintiff may be granted a temporary restraining order or a
preliminary injunction, pending or during trial, to restrain the
defendant from transferring, encumbering, hypothecating, or otherwise
disposing of any assets specified by the court, if it appears by the
complaint that the plaintiff is entitled to the relief demanded and
it appears that the defendant may dispose of those assets to thwart
enforcement of the judgment.
(j) The Legislature finds and declares that civil penalties for
the recovery of expenses incurred in enforcing the provisions of this
division shall not supplant criminal prosecution for violation of
those provisions, but shall be a supplemental remedy to criminal
enforcement.
(k) Any testimony, admission, or any other statement made by the
defendant in any proceeding brought pursuant to this section, or any
evidence derived from the testimony, admission, or other statement,
shall not be admitted or otherwise used in any criminal proceeding
arising out of the same conduct.
( l ) No action shall be brought or maintained pursuant
to this section against a person who has been acquitted of criminal
charges for conduct which may be the basis for an action under this
section if, in the criminal action, there has been a finding
of factual innocence by the court pursuant to standards set forth in
subdivision (b) of Section 851.8 of the Penal Code.
section.
SEC. 2. Section 11471.2 is added to the
Health and Safety Code , to read:
11471.2. (a) State or local law enforcement authorities shall not
refer or otherwise transfer property seized under state law to a
federal agency seeking the adoption by the federal agency of the
seized property. Nothing in this section shall be construed to
prohibit the federal government, or any of its agencies, from seeking
forfeiture under federal law.
(b) All property, moneys, negotiable instruments, securities, or
other things of value received by any state or local law enforcement
agency pursuant to any federal law that authorizes the sharing or
transfer of all or a portion of forfeited property or the proceeds of
the sale of forfeited property to a state or local law enforcement
agency shall be promptly transferred, sold, and deposited as set
forth in Section 11489.
(c) A state or local law enforcement agency may not receive all or
a portion of the forfeited property or proceeds from property
forfeited pursuant to federal law unless a defendant is convicted in
an underlying or related criminal action of an offense specified in
Section 11470 or any offense under federal law that includes all of
the elements of an offense specified in Section 11470. If federal law
prohibits compliance with Section 11489 or if a conviction in the
underlying or related criminal action is not obtained, state law
enforcement authorities shall not receive forfeited property or
proceeds from the sale of forfeited property shared or transferred
pursuant to federal law.
SEC. 3. Section 11488.4 of the Health
and Safety Code is amended to read:
11488.4. (a) (1) Except as provided in
subdivision (j), if the Department of Justice or the local
governmental entity determines that the factual circumstances do
warrant that the moneys, negotiable instruments, securities, or other
things of value seized or subject to forfeiture come within the
provisions of subdivisions (a) to (g), inclusive, of Section 11470,
and are not automatically made forfeitable or subject to court order
of forfeiture or destruction by another provision of this chapter,
the Attorney General or district attorney shall file a petition of
forfeiture with the superior court of the county in which the
defendant has been charged with the underlying criminal offense or in
which the property subject to forfeiture has been seized or, if no
seizure has occurred, in the county in which the property subject to
forfeiture is located. If the petition alleges that real property is
forfeitable, the prosecuting attorney shall cause a lis pendens to be
recorded in the office of the county recorder of each county in
which the real property is located.
A
(2) A petition of forfeiture
under this subdivision shall be filed as soon as practicable, but in
any case within one year of the seizure of the property which is
subject to forfeiture, or as soon as practicable, but in any case
within one year of the filing by the Attorney General or district
attorney of a lis pendens or other process against the property,
whichever is earlier.
(b) Physical seizure of assets shall not be necessary in order to
have that particular asset alleged to be forfeitable in a petition
under this section. The prosecuting attorney may seek protective
orders for any asset pursuant to Section 11492.
(c) The Attorney General or district attorney shall make service
of process regarding this petition upon every individual designated
in a receipt issued for the property seized. In addition, the
Attorney General or district attorney shall cause a notice of the
seizure, if any, and of the intended forfeiture proceeding, as well
as a notice stating that any interested party may file a verified
claim with the superior court of the county in which the property was
seized or if the property was not seized, a notice of the initiation
of forfeiture proceedings with respect to any interest in the
property seized or subject to forfeiture, to be served by personal
delivery or by registered mail upon any person who has an interest in
the seized property or property subject to forfeiture other than
persons designated in a receipt issued for the property seized.
Whenever a notice is delivered pursuant to this section, it shall be
accompanied by a claim form as described in Section 11488.5 and
directions for the filing and service of a claim.
(d) An investigation shall be made by the law enforcement agency
as to any claimant to a vehicle, boat, or airplane whose right,
title, interest, or lien is of record in the Department of Motor
Vehicles or appropriate federal agency. If the law enforcement agency
finds that any person, other than the registered owner, is the legal
owner thereof, and such that ownership
did not arise subsequent to the date and time of arrest or
notification of the forfeiture proceedings or seizure of the vehicle,
boat, or airplane, it shall forthwith send a notice to the legal
owner at his or her address appearing on the records of the
Department of Motor Vehicles or appropriate federal agency.
(e) When a forfeiture action is filed, the notices shall be
published once a week for three successive weeks in a newspaper of
general circulation in the county where the seizure was made or where
the property subject to forfeiture is located.
(f) All notices shall set forth the time within which a claim of
interest in the property seized or subject to forfeiture is required
to be filed pursuant to Section 11488.5. The notices shall
explain, in plain language, what an interested party must do and the
time in which the person must act to contest the forfeiture in a
hearing. The notices shall state what rights the interested party has
at a hearing. The notices shall also state the legal consequences
for failing to respond to the forfeiture notice.
(g) Nothing contained in this chapter shall preclude a person,
other than a defendant, claiming an interest in property actually
seized from moving for a return of property if that person can show
standing by proving an interest in the property not assigned
subsequent to the seizure or filing of the forfeiture petition.
(h) (1) If there is an underlying or related
criminal action, a defendant may move for the return of the property
on the grounds that there is not probable cause to believe that the
property is forfeitable pursuant to subdivisions (a) to (g),
inclusive, of Section 11470 and is not automatically made forfeitable
or 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 preliminary examination. If made subsequent to
the preliminary examination, the Attorney General or district
attorney may submit the record of the preliminary hearing to
establish as evidence that probable cause
exists to believe that the underlying or related criminal violations
have occurred.
Within
(2) Within 15 days after a
defendant's motion is granted, the people may file a petition for a
writ of mandate or prohibition seeking appellate review of the
ruling.
(i) (1) With respect to property described in subdivisions (e) and
(g) of Section 11470 for which forfeiture is sought and as to which
forfeiture is contested, the state or local governmental entity shall
have the burden of proving beyond a reasonable doubt that the
property for which forfeiture is sought was used, or intended to be
used, to facilitate a violation of one of the offenses enumerated in
subdivision (f) or (g) of Section 11470.
(2) In the case of property described in subdivision (f) of
Section 11470, except cash, negotiable instruments, or other
cash equivalents of a value of not less than twenty-five thousand
dollars ($25,000), for which forfeiture is sought and as to
which forfeiture is contested, the state or local governmental
entity shall have the burden of proving beyond a reasonable doubt
that the property for which forfeiture is sought meets the criteria
for forfeiture described in subdivision (f) of Section 11470.
(3) In the case of property described in paragraphs (1) and (2), a
judgment of forfeiture requires as a condition precedent thereto,
that a defendant be convicted in an underlying or related criminal
action of an offense specified in subdivision (f) or (g) of Section
11470 which offense occurred within five years of the seizure of the
property subject to forfeiture or within five years of the
notification of intention to seek forfeiture. If the defendant is
found guilty of the underlying or related criminal offense, the issue
of forfeiture shall be tried before the same jury, if the trial was
by jury, or tried before the same court, if trial was by court,
unless waived by all parties. The issue of forfeiture shall be
bifurcated from the criminal trial and tried after conviction unless
waived by all the parties. If the defendant in the related
criminal matter is represented by court-appointed counsel, the trial
court shall appoint counsel for the defendant in the
forfeiture proceeding.
(4) In the case of property described in subdivision (f) of
Section 11470 that is cash or negotiable instruments of a value of
not less than twenty-five thousand dollars ($25,000), the state or
local governmental entity shall have the burden of proving by clear
and convincing evidence that the property for which forfeiture is
sought is such as is described in subdivision (f) of Section 11470.
There is no requirement for forfeiture thereof that a criminal
conviction be obtained in an underlying or related criminal offense.
(5)
(4) If there is an underlying or related criminal
action, and a criminal conviction is required before a judgment of
forfeiture may be entered, the issue of forfeiture shall be tried in
conjunction therewith. Trial shall be by jury unless waived by all
parties. If there is no underlying or related criminal action, the
presiding judge of the superior court shall assign the action brought
pursuant to this chapter for trial.
(j) The Attorney General or the district attorney of the county in
which property is subject to forfeiture under Section 11470 may,
pursuant to this subdivision, order forfeiture of personal property
not exceeding twenty-five thousand dollars ($25,000) in value. The
Attorney General or district attorney shall provide notice of
proceedings under this subdivision pursuant to subdivisions (c), (d),
(e), and (f), including:
(1) A description of the property.
(2) The appraised value of the property.
(3) The date and place of seizure or location of any property not
seized but subject to forfeiture.
(4) The violation of law alleged with respect to forfeiture of the
property.
(5) (A) The instructions for filing and
serving a claim with the Attorney General or the district attorney
pursuant to Section 11488.5 and time limits for filing a claim and
claim form.
If
(B) If no claims are timely
filed, the Attorney General or the district attorney shall prepare a
written declaration of forfeiture of the subject property to the
state and dispose of the property in accordance with Section 11489. A
written declaration of forfeiture signed by the Attorney General or
district attorney under this subdivision shall be deemed to provide
good and sufficient title to the forfeited property. The prosecuting
agency ordering forfeiture pursuant to this subdivision shall provide
a copy of the declaration of forfeiture to any person listed in the
receipt given at the time of seizure and to any person personally
served notice of the forfeiture proceedings.
If
(C) If a claim is timely filed,
then the Attorney General or district attorney shall file a petition
of forfeiture pursuant to this section within 30 days of the receipt
of the claim. The petition of forfeiture shall then proceed pursuant
to other provisions of this chapter, except that no additional notice
need be given and no additional claim need be filed.
(k) If in any underlying or related criminal action or proceeding,
in which a petition for forfeiture has been filed pursuant to this
section, and a criminal conviction is required before a judgment of
forfeiture may be entered, the defendant willfully fails to appear as
required, there shall be no requirement of a criminal
conviction as a prerequisite to forfeiture. In these cases,
forfeiture shall be ordered as against the defendant and judgment
entered upon default, upon application of the state or local
governmental entity. In its application for default, the state or
local governmental entity shall be required to give notice to the
defendant's attorney of record, if any, in the underlying or related
criminal action, and to make a showing of due diligence to locate the
defendant. In moving for a default judgment pursuant to this
subdivision, the state or local governmental entity shall be required
to establish a prima facie case in support of its petition for
forfeiture.
SEC. 4. Section 11488.7 is added to the
Health and Safety Code , to read:
11488.7. In any forfeiture proceeding under this chapter in which
the defendant or claimant substantially prevails, the defendant or
claimant shall be entitled to recover reasonable attorneys' fees and
other litigation costs reasonably incurred by the defendant or
claimant. Any final award of fees and costs shall be paid directly to
the defendant's or claimant's attorney.
SEC. 5. Section 11489 of the Health and
Safety Code is amended to read:
11489. Notwithstanding Section 11502 and except as otherwise
provided in Section 11473, in all cases where the property is seized
pursuant to this chapter and forfeited to the state or local
governmental entity and, where 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 mortgagee of the property, if any, up to the amount of his
or her interest in the property, when the court declaring the
forfeiture orders a distribution to that person.
(b) The balance, if any, to accumulate, and to be distributed and
transferred quarterly in the following manner:
(1) To the state agency 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 costs of
notice required by Section 11488.4, and for any necessary repairs,
storage, or transportation of any property seized under this chapter.
(2) The remaining funds shall be distributed as follows:
(A) Sixty-five Sixty percent to the
state, local, or state and local law enforcement entities that
participated in the seizure distributed so as to reflect the
proportionate contribution of each agency.
(i) Fifteen percent of the funds distributed pursuant to this
subparagraph shall be deposited in a special fund maintained by the
county, city, or city and county of any agency making the seizure or
seeking an order for forfeiture. This fund shall be used for the sole
purpose of funding programs designed to combat drug abuse and divert
gang activity, and shall wherever possible involve educators,
parents, community-based organizations and local businesses, and
uniformed law enforcement officers. Those programs that have been
evaluated as successful shall be given priority. These funds shall
not be used to supplant any state or local funds that would, in the
absence of this clause, otherwise be made available to the programs.
It is the intent of the Legislature to cause the development and
continuation of positive intervention programs for high-risk
elementary and secondary schoolage students. Local law enforcement
should work in partnership with state and local agencies and the
private sector in administering these programs.
(ii) The actual distribution of funds set aside pursuant to clause
(i) is to shall be determined by a
panel consisting of the sheriff of the county, a police chief
selected by the other chiefs in the county, and the district attorney
and the chief probation officer of the county.
(B) Ten Five percent to the
prosecutorial agency which that
processes the forfeiture action.
(C) Ten percent to the court in the jurisdiction where the
forfeiture proceedings are initiated.
(D) Five percent to the public defender's office or provider of
court-appointed counsel in the jurisdiction where the forfeiture
proceedings were initiated.
(C) Twenty-four
(E) Twenty percent to the General
Fund. Notwithstanding Section 13340 of the Government Code, the
moneys are hereby continuously appropriated to the General Fund.
Commencing January 1, 1995, 2016, all
moneys deposited in the General Fund pursuant to this subparagraph,
in an amount not to exceed ten million dollars ($10,000,000), shall
be made available for school safety and security, upon appropriation
by the Legislature, and shall be disbursed pursuant to Senate Bill
1255 of the 1993-94 Regular Session, as enacted.
(D) One percent to a private nonprofit organization composed of
local prosecutors which shall use these funds for the exclusive
purpose of providing a statewide program of education and training
for prosecutors and law enforcement officers in ethics and the proper
use of laws permitting the seizure and forfeiture of assets under
this chapter.
(c) Notwithstanding Item 0820-101-469 of the Budget Act of 1985
(Chapter 111 of the Statutes of 1985), all funds allocated to the
Department of Justice pursuant to subparagraph (A) of paragraph (2)
of subdivision (b) shall be deposited into the Department of Justice
Special Deposit Fund-State Asset Forfeiture Account and used for the
law enforcement efforts of the state or for state or local law
enforcement efforts pursuant to Section 11493.
All funds allocated to the Department of Justice by the federal
government under its Federal Asset Forfeiture program authorized by
the Comprehensive Crime Control Act of 1984 may be deposited directly
into the Narcotics Assistance and Relinquishment by Criminal
Offender Fund and used for state and local law enforcement efforts
pursuant to Section 11493.
Funds which that are not deposited
pursuant to the above paragraph shall be deposited into the
Department of Justice Special Deposit Fund-Federal Asset Forfeiture
Account.
(d) All funds distributed to the courts pursuant to subparagraph
(C) of paragraph (2) of subdivision (b) shall be deposited into the
Judicial Asset Forfeiture Fund, which is hereby created in the State
Treasury. The moneys in the Judicial Asset Forfeiture Fund, upon
appropriation by the Legislature, shall be expended for the purpose
of administering the courts in the jurisdiction where the forfeiture
proceeding occurred.
(d)
(e) All the funds distributed to the state or local
governmental entity pursuant to subparagraphs (A) and (B) of
paragraph (2) of subdivision (b) shall not supplant any state or
local funds that would, in the absence of this subdivision, be made
available to support the law enforcement and prosecutorial efforts of
these agencies.
The court shall order the forfeiture proceeds distributed to the
state, local, or state and local governmental entities as provided in
this section.
For the purposes of this section, "local governmental entity"
means any city, county, or city and county in this state.
(e) This section shall become operative on January 1, 1994.
SEC. 6. Section 11495 of the Health and
Safety Code is amended to read:
11495. (a) The funds received by the law enforcement agencies
under Section 11489 shall be deposited into an account maintained by
the Controller, county auditor, or city treasurer. These funds shall
be distributed to the law enforcement agencies at their request. The
Controller, auditor, or treasurer shall maintain a record of these
disbursements which records shall be open to public inspection,
subject to the privileges contained in Sections 1040, 1041, and 1042
of the Evidence Code.
(b) Upon request of the governing body of the jurisdiction in
which the distributions are made, the Controller, auditor, or
treasurer shall conduct an audit of these funds and their use. In the
case of the state, the governing body shall be the Legislature.
(c) Each year, the Attorney General shall publish a report which
sets forth the following information for the state, each county, each
city, and each city and county:
(1) The number of forfeiture actions initiated.
initiated and administered by state or local agencies under
California law, the number of cases adopted by the f
ederal government, and the number of cases initiated by a joint
federal-state action that were prosecuted under federal law.
(2) The number of cases and the administrative number or
court docket number of each case for which forfeiture was ordered or
declared.
(3) The number of suspects charged with a controlled substance
violation.
(4) The number of alleged criminal offenses that were under
federal or state law.
(5) The disposition of cases, including no charge, dropped
charges, acquittal, plea agreement, jury conviction, or other.
(3)
(6) The value of the assets forfeited.
(4)
(7) The recipients of the forfeited assets, the amounts
received, and the date of the disbursement.
(d) The Attorney General shall develop administrative guidelines
for the collection and publication of the information required in
subdivision (c).
(e) The Attorney General's report shall cover the calendar year
and shall be made no later than March 1 of each year beginning with
the year after the enactment of this law.
SEC. 7. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 11471 of the Health and
Safety Code is amended to read:
11471. (a) Property that is subject to forfeiture under this
division may be seized by any peace officer upon process issued by
any court having jurisdiction over the property. Seizure without
process may be made if any of the following situations exist:
(1) The seizure is incident to an arrest or a search under a
search warrant.
(2) The property subject to seizure has been the subject of a
prior judgment in favor of the state in a criminal injunction or
forfeiture proceeding based upon this division.
(3) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(4) There is probable cause to believe that the property was used
or is intended to be used in violation of this division.
(5) Real property subject to forfeiture may not be seized, absent
exigent circumstances, without notice to the interested parties and a
hearing to determine that seizure is necessary to preserve the
property pending the outcome of the proceedings. At the hearing, the
prosecution shall bear the burden of establishing that probable cause
exists for the forfeiture of the property and that seizure is
necessary to preserve the property pending the outcome of the
forfeiture proceedings. The court may issue seizure orders pursuant
to this section if it finds that seizure is warranted or pendente
lite orders pursuant to Section 11492 if it finds that the status quo
or value of the property can be preserved without seizure.
(6) Where business records are seized in conjunction with the
seizure of property subject to forfeiture, the seizing agency shall,
upon request, provide copies of the records to the person, persons,
or business entity from whom the records were seized.