BILL NUMBER: SB 443 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JULY 16, 2015
AMENDED IN SENATE JUNE 2, 2015
AMENDED IN SENATE APRIL 6, 2015
INTRODUCED BY Senator Mitchell
( Principal coauthor: Senator
Leno )
( Principal coauthors:
Assembly Members Cristina Garcia and Hadley
)
( Coauthors: Senators
Anderson and Jackson )
( Coauthor: Assembly Member
Jones-Sawyer )
FEBRUARY 25, 2015
An act to amend Sections 11470.1, 11488.4, 11488.5,
11489, and 11495 of, and to add Sections 11471.2 and 11488.7
11471.2, 11488.7, and 11489.1 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 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 requesting an
equitable share from a federal agency of 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.
obtained.
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 also make other specified changes to court
forfeiture proceedings, including allowing parties to waive the
requirement that forfeiture cases be tried in conjunction with
related criminal cases when the forfeiture hearing is continued or
stayed.
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, public defenders, and a
specified nonprofit organization providing training in the use of
laws permitting seizure and forfeiture of assets. to
specified funds for specified purposes. 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: yes.
State-mandated local program: 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 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. 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 Care 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 the 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 that is
the basis for an action under this 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
authorizing the seizure of property to a federal agency seeking
the adoption of the seized property by the federal agency
of the seized property. for proceeding with
federal forfeiture. Nothing in this section shall be construed
to prohibit the federal government, or any of its agencies, from
seizing property, seeking forfeiture under federal
law. law, or sharing federally forfeited property with
state or local law enforcement agencies when those state or local
agencies work with federal agencies in joint investigations arising
out of federal law or federal joint task forces comprised of federal
and state or local agencies.
(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 by federal agencies of all or a portion of
forfeited property or the proceeds of from
the sale of forfeited property to a state or local law
enforcement agency shall be promptly transferred, sold, and
deposited distributed as set forth in
Section 11489. subdivision (a) of Section 11489.1.
(c) A state or local law enforcement agency may not
receive participating in a joint investigation with a
federal agency shall not request an equitable share from the federal
agency of all or a portion of the forfeited property or
proceeds from the sale of property forfeited pursuant to
federal law unless a defendant is convicted in an underlying or
related criminal action of an offense for which property is
subject to forfeiture as specified in Section 11470 or
Section 11488, or any an offense
under federal law that includes all of the elements of an offense
for which property is subject to forfeiture as specified
in Section 11470. If federal law prohibits compliance with
Section 11489 or if Sections 11470 and 11488.
(d) If a conviction in the
underlying or related criminal action is not obtained, state law
enforcement authorities shall not receive
request an equitable share from the federal agency of all or a
portion of the forfeited property or proceeds from the sale of
forfeited property shared or transferred
property forfeited 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.
(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 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 as evidence that probable cause
exists to believe that the underlying or related criminal violations
have occurred.
(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, 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),
where forfeiture is contested, 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) 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. In such a case, the issue of forfeiture shall be
bifurcated from the criminal trial and tried after conviction unless
waived by the parties. 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.
(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. subdivision
(b) of Section 11489.1. 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.
(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 the 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 11488.5 of the Health
and Safety Code is amended to read:
11488.5. (a) (1) Any person claiming an interest in the property
seized pursuant to Section 11488 may, unless for good cause shown the
court extends the time for filing, at any time within 30 days from
the date of the first last publication
of the notice of seizure, if that person was not personally served or
served by mail, or within 30 days after receipt of actual notice,
file with the superior court of the county in which the defendant has
been charged with the underlying or related criminal offense or in
which the property was seized or, if there was no seizure, in which
the property is located, a claim, verified in accordance with Section
446 of the Code of Civil Procedure, stating his or her interest in
the property. An endorsed copy of the claim shall be served by the
claimant on the Attorney General or district attorney, as
appropriate, within 30 days of the filing of the claim. The Judicial
Council shall develop and approve official forms for the verified
claim that is to be filed pursuant to this section. The official
forms shall be drafted in nontechnical language, in English and in
Spanish, and shall be made available through the office of the clerk
of the appropriate court.
(2) Any person who claims that the property was assigned to him or
to her prior to the seizure or notification of pending forfeiture of
the property under this chapter, whichever occurs first,
last, shall file a claim with the court and
prosecuting agency pursuant to Section 11488.5 declaring an interest
in that property and that interest shall be adjudicated at the
forfeiture hearing. The property shall remain under control of the
law enforcement or prosecutorial agency until the adjudication of the
forfeiture hearing. Seized property shall be protected and its value
shall be preserved pending the outcome of the forfeiture
proceedings.
(3) The clerk of the court shall not charge or collect a fee for
the filing of a claim in any case in which the value of the
respondent property as specified in the notice is five thousand
dollars ($5,000) or less. If the value of the property, as specified
in the notice, is more than five thousand dollars ($5,000), the clerk
of the court shall charge the filing fee specified in Section 70611
of the Government Code.
(4) The claim of a law enforcement agency to property seized
pursuant to Section 11488 or subject to forfeiture shall have
priority over a claim to the seized or forfeitable property made by
the Franchise Tax Board in a notice to withhold issued pursuant to
Section 18817 or 26132 of the Revenue and Taxation Code.
(b) (1) If at the end of the time set forth in subdivision (a)
there is no claim on file, the court, upon motion, shall declare the
property seized or subject to forfeiture pursuant to subdivisions (a)
to (g), inclusive, of Section 11470 forfeited to the state. 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.
(2) The court shall order the forfeited
money forfeited or the proceeds of the sale of property to be
distributed as set forth in Section 11489.
subdivision (b) of Section 11489.1.
(c) (1) If a verified claim is filed, the forfeiture proceeding
shall be set for hearing on a day not less than 30 days therefrom,
and the proceeding shall have priority over other civil cases. Notice
of the hearing shall be given in the same manner as provided in
Section 11488.4. Such a verified claim or a claim filed pursuant to
subdivision (j) of Section 11488.4 shall not be admissible in the
proceedings regarding the underlying or related criminal offense set
forth in subdivision (a) of Section 11488.
(2) The hearing shall be by jury, unless waived by consent of all
parties.
(3) The provisions of the Code of Civil Procedure shall apply to
proceedings under this chapter unless otherwise inconsistent with the
provisions or procedures set forth in this chapter. However, in
proceedings under this chapter, there shall be no joinder of actions,
coordination of actions, except for forfeiture proceedings, or
cross-complaints, and the issues shall be limited strictly to the
questions related to this chapter.
(d) (1) At the hearing, the state or local governmental entity
shall have the burden of establishing, pursuant to subdivision (i) of
Section 11488.4, that the owner of any interest in the seized
property consented to the use of the property with knowledge that it
would be or was used for a purpose for which forfeiture is permitted,
in accordance with the burden of proof set forth in subdivision (i)
of Section 11488.4.
(2) No interest in the seized property shall be affected by a
forfeiture decree under this section unless the state or local
governmental entity has proven that the owner of that interest
consented to the use of the property with knowledge that it would be
or was used for the purpose charged. Forfeiture shall be ordered
when, at the hearing, the state or local governmental entity has
shown that the assets in question are subject to forfeiture pursuant
to Section 11470, in accordance with the burden of proof set forth in
subdivision (i) of Section 11488.4.
(e) The forfeiture hearing shall be continued upon motion of the
prosecution or the defendant until after a verdict of guilty on any
criminal charges specified in this chapter and pending against the
defendant have been decided. In cases in which the forfeiture
hearing, or any related civil discovery, is continued or stayed, the
requirement that the forfeiture case be tried in conjunction with the
related criminal case or to the same jury as in the related criminal
case may be waived by the parties. The forfeiture hearing
shall be conducted in accordance with Sections 190 to 222.5,
inclusive, Sections 224 to 234, inclusive, Section 237, and Sections
607 to 630, inclusive, of the Code of Civil Procedure if a trial by
jury, and by Sections 631 to 636, inclusive, of the Code of Civil
Procedure if by the court. Unless the court or jury finds that the
seized property was used for a purpose for which forfeiture is
permitted, the court shall order the seized property released to the
person it determines is entitled thereto.
If the court or jury finds that the seized property was used for a
purpose for which forfeiture is permitted, but does not find that a
person claiming an interest therein, to which the court has
determined he or she is entitled, had actual knowledge that the
seized property would be or was used for a purpose for which
forfeiture is permitted and consented to that use, the court shall
order the seized property released to the claimant.
(f) All seized property which was the subject of a contested
forfeiture hearing and which was not released by the court to a
claimant shall be declared by the court to be forfeited to the state,
provided the burden of proof required pursuant to subdivision (i) of
Section 11488.4 has been met. The court shall order the forfeited
property to be distributed as set forth in Section 11489.
(g) All seized property which was the subject of the forfeiture
hearing and which was not forfeited shall remain subject to any order
to withhold issued with respect to the property by the Franchise Tax
Board.
SEC. 4. SEC. 5. 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. SEC. 6. 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) Fifty-four Forty 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
agency. 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) 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) Five percent to the prosecutorial agency 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.
(E)
(B) Twenty-four 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, 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.
(C) Thirty-four percent to the State Asset Forfeiture Fund for
Courts and Criminal Justice Purposes, available upon appropriation by
the Legislature for the purposes described in subdivision (b) of
Section 11489.1.
(F)
(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.
(G)
(E) One percent to a private nonprofit organization
composed of local criminal defense attorneys, which shall use these
funds for the exclusive purpose of providing a statewide program of
education and training in the 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, 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 (Public Law 98-473) 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 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.
(e)
(d) All the funds distributed to the state or local
governmental entity pursuant to subparagraphs
subparagraph (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.
SEC. 7. Section 11489.1 is added to the
Health and Safety Code , to read:
11489.1. (a) 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 from the sale of forfeited property to a state or local
law enforcement agency shall be deposited into the State Asset
Forfeiture Fund for Law Enforcement Purposes, which is hereby created
in the State Treasury. Upon appropriation by the Legislature, the
moneys in the State Asset Forfeiture Fund for Law Enforcement
Purposes shall be allocated to law enforcement agencies statewide,
based on the population of the jurisdiction served.
(b) All property, moneys, negotiable instruments, securities, or
other things of value forfeited pursuant to subdivision (j) of
Section 11488.4 and subparagraph (2) of subdivision (b) of Section
11488.5 shall be distributed as follows:
(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 for
public notice, hearings, or for any necessary repairs, storage, or
transportation of any property lawfully forfeited.
(2) The remaining funds shall be distributed as follows:
(A) Twenty-four percent to the General Fund.
(B) Seventy-six percent to the State Asset Forfeiture Fund for
Courts and Criminal Justice Purposes, which is hereby created in the
State Treasury. Upon appropriation by the Legislature, the moneys in
the State Asset Forfeiture Fund for Courts and Criminal Justice
Purposes shall be made available for the purpose of criminal and
civil court functions, prosecution, public defense and indigent
defense, law enforcement, crime prevention including after school
programs for adolescents and drug treatment for adolescents and
adults, and victim services.
SEC. 6. SEC. 8. 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 and administered by
state or local agencies under California law, the number of cases
adopted by the federal 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.
(6) The value of the assets forfeited.
(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. SEC. 9. 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.