BILL ANALYSIS                                                                                                                                                                                                    Ó



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          SENATE THIRD READING


          SB  
          443 (Mitchell)


          As Amended  August 4, 2016


          Majority vote


          SENATE VOTE:  38-1


           -------------------------------------------------------------------- 
          |Committee       |Votes|Ayes                   |Noes                 |
          |                |     |                       |                     |
          |                |     |                       |                     |
          |                |     |                       |                     |
          |----------------+-----+-----------------------+---------------------|
          |Public Safety   |7-0  |Quirk, Melendez,       |                     |
          |                |     |Jones-Sawyer, Lackey,  |                     |
          |                |     |Lopez, Low, Santiago   |                     |
          |                |     |                       |                     |
          |----------------+-----+-----------------------+---------------------|
          |Appropriations  |10-2 |Gomez, Bloom, Bonta,   |Bigelow, Gallagher   |
          |                |     |Nazarian, Eggman,      |                     |
          |                |     |Holden, Quirk, Rendon, |                     |
          |                |     |Weber, Wood            |                     |
          |                |     |                       |                     |
          |                |     |                       |                     |
           -------------------------------------------------------------------- 


          SUMMARY:  Requires additional due process protection in cases  
          where the State of California seeks to forfeit assets in  
          connection with specified drug offenses and requires a criminal  








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          conviction when property/money forfeited under federal law is  
          distributed to state or local law enforcement, unless the value  
          of the assets is greater than $40,000.00, as specified.   
          Specifically, this bill:


          1)States that it shall be necessary to obtain a criminal  
            conviction for the unlawful manufacture or cultivation of any  
            controlled substance or its precursors in order to recover law  
            enforcement expenses related to the seizing or destroying of  
            illegal drugs. 


          2)Specifies that state and local law enforcement authorities  
            shall not refer, or otherwise transfer, property seized under  
            state law to a federal agency seeking the adoption of the  
            seized property. 


          3)Clarifies that this bill does not prohibit the federal  
            government from seeking forfeiture under federal law, or  
            sharing proceeds from federal forfeiture proceedings with  
            state and local law enforcement in those situations where  
            there are joint investigations.


          4)Clarifies that this bill does not prohibit state or local law  
            enforcement from participating in joint law enforcement  
            operation with federal agencies.


          5)Specifies that a state or local law enforcement agency may not  
            receive forfeited property or proceeds from property forfeited  
            pursuant to federal law unless a defendant is convicted in an  
            underlying or related criminal action of a specified offense,  
            or any offense under federal law that includes all of the  
            elements of one of the specified California offenses.   
            Specifies an exception to the conviction requirement if the  
            value of the assets is greater than $40,000.








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          6)States that if a defendant, charged with a specified criminal  
            offense arising from a state or local joint law enforcement  
            operation with federal agency, willfully fails to appear in  
            court, or is deceased, there shall be no requirement of a  
            criminal conviction in order for state or local law  
            enforcement to receive an equitable share of any federal  
            forfeiture proceeding.


          7)Requires a conviction on the related, specified criminal  
            charge to forfeit property in every case in which a claim is  
            filed to contest the forfeiture of property, unless the  
            defendant in the related criminal case willfully fails to  
            appear for court, or if the value of the assets is in excess  
            of $40,000, as specified.


          8)Requires proof beyond a reasonable doubt in all forfeiture  
            cases which are contested, except cash or negotiable  
            instruments of $40,000 or more for which the standard is proof  
            by clear and convincing evidence.


          9)Allows forfeiture of property less than $25,000 if notice of  
            the forfeiture has been provided, as specified, and no claims  
            have been made.


          10)Allows more time to make a claim contesting forfeiture.


          11)Allows property of $40,000 or more to be forfeited through a  
            judicial process when no claim to the forfeited property has  
            been made within the specified time.


          12)Each year, the Attorney General shall publish a report which  








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            sets forth the following information for the state, each  
            county, each city, and each city and county:


             a)   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;


             b)   The number of cases and the administrative number or  
               court docket number of each case for which forfeiture was  
               ordered or declared;


             c)   The number of suspects charged with a controlled  
               substance violation;


             d)   The number of alleged criminal offenses that were under  
               federal or state law;


             e)   The disposition of cases, including no charge, dropped  
               charges, acquittal, plea agreement, jury conviction, or  
               other;


             f)   The value of the assets forfeited; and


             g)   The recipients of the forfeited assets, the amounts  
               received, and the date of the disbursement.


          13)Requires the Legislative Analyst's Office to provide a report  
            to the Legislature by December 31, 2020, about the economic  
            impact on state and local law enforcement budgets because of  








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            changes to the forfeiture process proposed by this bill.


          EXISTING LAW: 


          1)Establishes an asset-forfeiture procedure for drug-related  
            cases.  


          2)Sets out detailed procedures for a drug forfeiture action,  
            including:  the filing of a petition for forfeiture within one  
            year of seizure, notice of seizure, publication of notice, the  
            right to a jury trial, and a motion for return of property.  


          3)Requires a conviction in an underlying criminal case and  
            provides that the burden of proof in the (civil) judicial  
            forfeiture action shall be beyond a reasonable doubt in cases  
            where the value of the forfeited property is under $25,000.  


          4)Specifies that forfeiture does not require a conviction on an  
            underlying drug offense where the property sought to be  
            forfeited is cash or negotiable securities over $25,000, and  
            allows forfeiture upon a burden of proof of "clear and  
            convincing evidence" under these circumstances.  


          5)Allows for administrative (non-judicial) forfeiture for cases  
            involving personal property worth $25,000 or less.  A full  
            hearing is required if a claim as to the property is filed, as  
            specified.  


          6)Provides a scheme for the distribution of fund from  
            forfeitures and seizures.  Specifically, after distribution to  
            any bona fide innocent owners and reimbursement of expenses,  
            65% of proceeds go to participating law enforcement agencies,  








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            10% to the prosecutorial agency, 24% to the General Fund, and  
            1% to nonprofit group of prosecutors to provide forfeiture  
            education.  


          7)Requires the Department of Justice (DOJ) to publish an annual  
            report detailing specified information on forfeiture actions.   
              


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, an unquantifiable revenue loss, in the millions, to  
          state and local agencies by:


          1)Requiring a conviction of the underlying crime prior to asset  
            forfeiture, and prohibiting local agency participation in  
            federal asset distribution if there is no conviction. 


          2)Prohibiting the transfer of property to federal agencies; thus  
            preventing local and state agencies from receiving equitable  
            share of seized property


          COMMENTS:  According to the author, "SB 443 will reign in abuses  
          surrounding the practice to civil asset forfeiture, and  
          reestablish the most basic tenets of Constitutional law and  
          values, requiring that in most cases, a defendant be convicted  
          of an underlying crime before cash or property can be  
          permanently seized.  This bill will require that more drug asset  
          forfeiture cases be handled under state law, rather than  
          transferred to federal courts, and that seized assets are  
          dispersed to local law enforcement agencies, courts, defenders,  
          prosecutors and the General Fund, pursuant to state law."












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          Please see the policy committee analysis for a full discussion  
                          of this bill.


          Analysis Prepared by:                                             
                          David Billingsley / PUB. S. / (916) 319-3744   
          FN: 0003771