5320. If a person is convicted of a violation of Section 5303,
5304, 5305, or 5306, or is convicted of a felony for a violation of
Section 25540 or 25541 of the Corporations Code in connection with
the operation of a lending institution subject to the jurisdiction of
the department pursuant to this division, or is convicted of a
felony violation of Section 487 or 504 of the Penal Code in
connection with the operation of a lending institution subject to the
jurisdiction of the department pursuant to this division any
property which constitutes or is derived from proceeds traceable to
that violation is subject to forfeiture pursuant to this article.
5321. (a) The prosecuting agency shall, prior to, in conjunction
with, or subsequent to the criminal proceeding, file a petition of
forfeiture with the superior court of the county in which the
defendant has been or will be charged with the underlying criminal
offense. The petition shall allege that the defendant has engaged in
acts chargeable as crimes pursuant to the criminal provisions
enumerated in Section 5320 and shall identify the property subject to
forfeiture. A notice regarding the petition shall be provided, by
personal service or registered mail, to every person who may have an
interest in the property specified in the petition. However, if the
notice cannot be given by registered mail or personal delivery, the
notice shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property is
located. The notice shall state that any interested person may file a
verified claim with the superior court stating the amount of their
claimed interest and an affirmation or denial of the prosecuting
agency's allegation. The notice shall set forth the time within which
a claim of interest in the property seized is required to be filed.
(b) If the property alleged to be subject to forfeiture is real
property, the prosecuting agency shall, at the time of filing the
petition of forfeiture, record a lis pendens in each county in which
the real property is situated which specifically identifies the
property by legal description, the name of the owner of record as
shown on the latest equalized assessment roll, and assessor's parcel
number. The judgment of forfeiture shall not affect the interest in
real property of any third party which was acquired prior to the
recording of the lis pendens.
(c) If a petition of forfeiture is filed pursuant to this section
prior to filing of the complaint in a criminal action, the
prosecuting agency shall provide concurrent notice to any parties
subject to the proposed forfeiture that they are targets of an
anticipated criminal action.
(d) If a petition of forfeiture is filed pursuant to this section
prior to the filing of a complaint in a criminal action, the petition
and any injunctive order shall be dismissed by operation of law,
unless a criminal complaint or grand jury indictment is filed within
120 days after the filing of the petition. If a petition is dismissed
pursuant to this section, it shall not be refiled, except upon the
filing of a criminal complaint or grand jury indictment.
5322. (a) Any person claiming an interest in the property may, at
any time within 30 days from the date of the first publication of the
notice of seizure, or within 30 days after receipt of actual notice,
file with the superior court of the county in which the action is
pending a verified claim stating his or her interest in the property
or proceeds. A verified copy of the claim shall be given by the
claimant to the Attorney General or district attorney, as
appropriate.
(b) (1) If, at the end of the time set forth in subdivision (a),
an interested person, other than the defendant, has not filed a
claim, the court, upon motion, shall declare that the person has
defaulted upon his or her alleged interest, and it shall be subject
to forfeiture upon proof of the provisions of subdivision (d).
(2) The defendant may admit or deny that the property is subject
to forfeiture pursuant to the provisions of this article. If the
defendant fails to admit or deny or to file a claim of interest in
the property or proceeds, the court shall enter a response of denial
on behalf of the defendant.
(c) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
(2) If the defendant is found guilty of the underlying offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
(d) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
defendant was engaged in actions in violation of Sections 5303, 5304,
5305, and 5306 and that the property specified in the petition
otherwise meets the criteria for forfeiture under Section 5320. If a
jury is the trier of fact, the verdict shall be unanimous in order to
impose the forfeiture.
5323. (a) Concurrent with, or subsequent to, the filing of the
petition, the prosecuting agency may move the superior court for the
following pendente lite orders to preserve the status quo of the
property alleged in the petition of forfeiture:
(1) An injunction to restrain all interested parties and enjoin
them from transferring, encumbering, hypothecating or otherwise
disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that such property
may be maintained and preserved.
(b) No preliminary injunction may be granted or receiver appointed
without notice, that meets the requirements of Section 5321, to all
the interested parties, including actual notice to targets of the
anticipated criminal action, and a hearing to determine that such an
order is necessary to preserve the property, pending the outcome of
the criminal proceedings, and that there is probable cause to believe
that the property alleged in the forfeiture proceedings are proceeds
or property interests forfeitable under Section 5320. However, a
temporary restraining order may issue pending that hearing pursuant
to the provisions of Section 527 of the Code of Civil Procedure.
(1) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the underlying criminal
proceeding, the court shall weigh the relative degree of certainty of
the outcome on the merits and the consequences to each of the
parties of granting the interim relief. If the prosecution is likely
to prevail on the merits and the potential harm to the public
outweighs the potential harm to the defendants and the interested
parties, the court should grant injunctive relief. The court shall
give significant weight to the following factors:
(A) The public interest in preserving liquid capital and other
financial assets pendente lite.
(B) The difficulty of preserving financial assets pendente lite
where the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of financial crimes.
(D) The likelihood that substantial public harm has occurred where
financial crimes are alleged to have been committed.
(2) In determining whether to issue a permanent injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency before the filing of a complaint in the underlying criminal
proceeding, the court shall weigh the relative degree of certainty of
the outcome on the merits and the consequences to each of the
parties of granting the interim relief.
(3) No injunctive order issued under this section shall impair the
ability of a defendant or interested party to pay the actual legal
fees or retainer for his or her legal defense to the criminal charges
and the petition for forfeiture.
(c) Notwithstanding any other provision of law, the court in
granting these motions may order a surety bond or undertaking to
preserve the property interests of the interested parties, but the
court shall give significant weight to the unique circumstances of
public agencies, as opposed to private litigants, in determining
whether to order a surety bond or undertaking.
(d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in the commission of the
violation of a crime enumerated in Section 5320.
5324. (a) If the trier of fact at the forfeiture hearing finds that
the alleged property or proceeds is forfeitable pursuant to Section
5320, the court shall declare that property or proceeds forfeited to
the state or local governmental entity, subject to distribution as
provided in Section 5325. No property solely owned by a bona fide
purchaser for value shall be subject to forfeiture.
(b) If the trier of fact at the forfeiture hearing finds that the
alleged property is forfeitable pursuant to Section 5320, but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding, the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local governmental
entity shall relinquish all claims to the property. If the holder of
the interest elects not to make that payment to the state or local
governmental entity, the property shall be deemed forfeited to the
state or local governmental entity and any indicia of ownership of
the property shall be forwarded. The appraised value shall be
determined as of the date judgment is entered either (a) by agreement
between the holder of the lien, mortgage, security interest, or
interest under a conditional sales contract and the governmental
entity involved or (b) if they cannot agree, then by a
court-appointed appraiser for the county in which the action is
brought. A person holding a valid lien, mortgage, security interest,
or interest under a conditional sales contract shall be paid the
appraised value of his or her interest.
(c) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the county if the district attorney is the
prosecutor, by the city if the city attorney is the prosecutor, or by
the Department of General Services if the Attorney General is the
prosecutor. Notice of the sale shall be provided by one publication
in a newspaper published and circulated in the city, community, or
locality where the sale is to take place.
5325. Notwithstanding that no response or claim has been filed
pursuant to Section 5322, in all cases where property is forfeited
pursuant to this article 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 holder of a valid lien, mortgage or security interest, if
any, and from the balance of any forfeited funds to any victim of a
crime enumerated in Section 5320 committed by the defendant, 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 such lienholders 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. The aggregate of
all money distributed pursuant to this subdivision and all money
received pursuant to a restitution order of a court shall not exceed
the amount of the person's interest in the property or proceeds.
(b) To the Department of General Services 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 under this
article.
(c) The balance of forfeiture funds remaining after the
obligations in subdivisions (a) and (b) have been satisfied shall be
paid to the general fund of the state or local governmental entity,
whichever prosecutes.
5320. If a person is convicted of a violation of Section 5303,
5304, 5305, or 5306, or is convicted of a felony for a violation of
Section 25540 or 25541 of the Corporations Code in connection with
the operation of a lending institution subject to the jurisdiction of
the department pursuant to this division, or is convicted of a
felony violation of Section 487 or 504 of the Penal Code in
connection with the operation of a lending institution subject to the
jurisdiction of the department pursuant to this division any
property which constitutes or is derived from proceeds traceable to
that violation is subject to forfeiture pursuant to this article.
5321. (a) The prosecuting agency shall, prior to, in conjunction
with, or subsequent to the criminal proceeding, file a petition of
forfeiture with the superior court of the county in which the
defendant has been or will be charged with the underlying criminal
offense. The petition shall allege that the defendant has engaged in
acts chargeable as crimes pursuant to the criminal provisions
enumerated in Section 5320 and shall identify the property subject to
forfeiture. A notice regarding the petition shall be provided, by
personal service or registered mail, to every person who may have an
interest in the property specified in the petition. However, if the
notice cannot be given by registered mail or personal delivery, the
notice shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property is
located. The notice shall state that any interested person may file a
verified claim with the superior court stating the amount of their
claimed interest and an affirmation or denial of the prosecuting
agency's allegation. The notice shall set forth the time within which
a claim of interest in the property seized is required to be filed.
(b) If the property alleged to be subject to forfeiture is real
property, the prosecuting agency shall, at the time of filing the
petition of forfeiture, record a lis pendens in each county in which
the real property is situated which specifically identifies the
property by legal description, the name of the owner of record as
shown on the latest equalized assessment roll, and assessor's parcel
number. The judgment of forfeiture shall not affect the interest in
real property of any third party which was acquired prior to the
recording of the lis pendens.
(c) If a petition of forfeiture is filed pursuant to this section
prior to filing of the complaint in a criminal action, the
prosecuting agency shall provide concurrent notice to any parties
subject to the proposed forfeiture that they are targets of an
anticipated criminal action.
(d) If a petition of forfeiture is filed pursuant to this section
prior to the filing of a complaint in a criminal action, the petition
and any injunctive order shall be dismissed by operation of law,
unless a criminal complaint or grand jury indictment is filed within
120 days after the filing of the petition. If a petition is dismissed
pursuant to this section, it shall not be refiled, except upon the
filing of a criminal complaint or grand jury indictment.
5322. (a) Any person claiming an interest in the property may, at
any time within 30 days from the date of the first publication of the
notice of seizure, or within 30 days after receipt of actual notice,
file with the superior court of the county in which the action is
pending a verified claim stating his or her interest in the property
or proceeds. A verified copy of the claim shall be given by the
claimant to the Attorney General or district attorney, as
appropriate.
(b) (1) If, at the end of the time set forth in subdivision (a),
an interested person, other than the defendant, has not filed a
claim, the court, upon motion, shall declare that the person has
defaulted upon his or her alleged interest, and it shall be subject
to forfeiture upon proof of the provisions of subdivision (d).
(2) The defendant may admit or deny that the property is subject
to forfeiture pursuant to the provisions of this article. If the
defendant fails to admit or deny or to file a claim of interest in
the property or proceeds, the court shall enter a response of denial
on behalf of the defendant.
(c) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
(2) If the defendant is found guilty of the underlying offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
(d) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
defendant was engaged in actions in violation of Sections 5303, 5304,
5305, and 5306 and that the property specified in the petition
otherwise meets the criteria for forfeiture under Section 5320. If a
jury is the trier of fact, the verdict shall be unanimous in order to
impose the forfeiture.
5323. (a) Concurrent with, or subsequent to, the filing of the
petition, the prosecuting agency may move the superior court for the
following pendente lite orders to preserve the status quo of the
property alleged in the petition of forfeiture:
(1) An injunction to restrain all interested parties and enjoin
them from transferring, encumbering, hypothecating or otherwise
disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that such property
may be maintained and preserved.
(b) No preliminary injunction may be granted or receiver appointed
without notice, that meets the requirements of Section 5321, to all
the interested parties, including actual notice to targets of the
anticipated criminal action, and a hearing to determine that such an
order is necessary to preserve the property, pending the outcome of
the criminal proceedings, and that there is probable cause to believe
that the property alleged in the forfeiture proceedings are proceeds
or property interests forfeitable under Section 5320. However, a
temporary restraining order may issue pending that hearing pursuant
to the provisions of Section 527 of the Code of Civil Procedure.
(1) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the underlying criminal
proceeding, the court shall weigh the relative degree of certainty of
the outcome on the merits and the consequences to each of the
parties of granting the interim relief. If the prosecution is likely
to prevail on the merits and the potential harm to the public
outweighs the potential harm to the defendants and the interested
parties, the court should grant injunctive relief. The court shall
give significant weight to the following factors:
(A) The public interest in preserving liquid capital and other
financial assets pendente lite.
(B) The difficulty of preserving financial assets pendente lite
where the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of financial crimes.
(D) The likelihood that substantial public harm has occurred where
financial crimes are alleged to have been committed.
(2) In determining whether to issue a permanent injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency before the filing of a complaint in the underlying criminal
proceeding, the court shall weigh the relative degree of certainty of
the outcome on the merits and the consequences to each of the
parties of granting the interim relief.
(3) No injunctive order issued under this section shall impair the
ability of a defendant or interested party to pay the actual legal
fees or retainer for his or her legal defense to the criminal charges
and the petition for forfeiture.
(c) Notwithstanding any other provision of law, the court in
granting these motions may order a surety bond or undertaking to
preserve the property interests of the interested parties, but the
court shall give significant weight to the unique circumstances of
public agencies, as opposed to private litigants, in determining
whether to order a surety bond or undertaking.
(d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in the commission of the
violation of a crime enumerated in Section 5320.
5324. (a) If the trier of fact at the forfeiture hearing finds that
the alleged property or proceeds is forfeitable pursuant to Section
5320, the court shall declare that property or proceeds forfeited to
the state or local governmental entity, subject to distribution as
provided in Section 5325. No property solely owned by a bona fide
purchaser for value shall be subject to forfeiture.
(b) If the trier of fact at the forfeiture hearing finds that the
alleged property is forfeitable pursuant to Section 5320, but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding, the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local governmental
entity shall relinquish all claims to the property. If the holder of
the interest elects not to make that payment to the state or local
governmental entity, the property shall be deemed forfeited to the
state or local governmental entity and any indicia of ownership of
the property shall be forwarded. The appraised value shall be
determined as of the date judgment is entered either (a) by agreement
between the holder of the lien, mortgage, security interest, or
interest under a conditional sales contract and the governmental
entity involved or (b) if they cannot agree, then by a
court-appointed appraiser for the county in which the action is
brought. A person holding a valid lien, mortgage, security interest,
or interest under a conditional sales contract shall be paid the
appraised value of his or her interest.
(c) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the county if the district attorney is the
prosecutor, by the city if the city attorney is the prosecutor, or by
the Department of General Services if the Attorney General is the
prosecutor. Notice of the sale shall be provided by one publication
in a newspaper published and circulated in the city, community, or
locality where the sale is to take place.
5325. Notwithstanding that no response or claim has been filed
pursuant to Section 5322, in all cases where property is forfeited
pursuant to this article 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 holder of a valid lien, mortgage or security interest, if
any, and from the balance of any forfeited funds to any victim of a
crime enumerated in Section 5320 committed by the defendant, 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 such lienholders 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. The aggregate of
all money distributed pursuant to this subdivision and all money
received pursuant to a restitution order of a court shall not exceed
the amount of the person's interest in the property or proceeds.
(b) To the Department of General Services 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 under this
article.
(c) The balance of forfeiture funds remaining after the
obligations in subdivisions (a) and (b) have been satisfied shall be
paid to the general fund of the state or local governmental entity,
whichever prosecutes.
5320. If a person is convicted of a violation of Section 5303,
5304, 5305, or 5306, or is convicted of a felony for a violation of
Section 25540 or 25541 of the Corporations Code in connection with
the operation of a lending institution subject to the jurisdiction of
the department pursuant to this division, or is convicted of a
felony violation of Section 487 or 504 of the Penal Code in
connection with the operation of a lending institution subject to the
jurisdiction of the department pursuant to this division any
property which constitutes or is derived from proceeds traceable to
that violation is subject to forfeiture pursuant to this article.
5321. (a) The prosecuting agency shall, prior to, in conjunction
with, or subsequent to the criminal proceeding, file a petition of
forfeiture with the superior court of the county in which the
defendant has been or will be charged with the underlying criminal
offense. The petition shall allege that the defendant has engaged in
acts chargeable as crimes pursuant to the criminal provisions
enumerated in Section 5320 and shall identify the property subject to
forfeiture. A notice regarding the petition shall be provided, by
personal service or registered mail, to every person who may have an
interest in the property specified in the petition. However, if the
notice cannot be given by registered mail or personal delivery, the
notice shall be published for at least three successive weeks in a
newspaper of general circulation in the county where the property is
located. The notice shall state that any interested person may file a
verified claim with the superior court stating the amount of their
claimed interest and an affirmation or denial of the prosecuting
agency's allegation. The notice shall set forth the time within which
a claim of interest in the property seized is required to be filed.
(b) If the property alleged to be subject to forfeiture is real
property, the prosecuting agency shall, at the time of filing the
petition of forfeiture, record a lis pendens in each county in which
the real property is situated which specifically identifies the
property by legal description, the name of the owner of record as
shown on the latest equalized assessment roll, and assessor's parcel
number. The judgment of forfeiture shall not affect the interest in
real property of any third party which was acquired prior to the
recording of the lis pendens.
(c) If a petition of forfeiture is filed pursuant to this section
prior to filing of the complaint in a criminal action, the
prosecuting agency shall provide concurrent notice to any parties
subject to the proposed forfeiture that they are targets of an
anticipated criminal action.
(d) If a petition of forfeiture is filed pursuant to this section
prior to the filing of a complaint in a criminal action, the petition
and any injunctive order shall be dismissed by operation of law,
unless a criminal complaint or grand jury indictment is filed within
120 days after the filing of the petition. If a petition is dismissed
pursuant to this section, it shall not be refiled, except upon the
filing of a criminal complaint or grand jury indictment.
5322. (a) Any person claiming an interest in the property may, at
any time within 30 days from the date of the first publication of the
notice of seizure, or within 30 days after receipt of actual notice,
file with the superior court of the county in which the action is
pending a verified claim stating his or her interest in the property
or proceeds. A verified copy of the claim shall be given by the
claimant to the Attorney General or district attorney, as
appropriate.
(b) (1) If, at the end of the time set forth in subdivision (a),
an interested person, other than the defendant, has not filed a
claim, the court, upon motion, shall declare that the person has
defaulted upon his or her alleged interest, and it shall be subject
to forfeiture upon proof of the provisions of subdivision (d).
(2) The defendant may admit or deny that the property is subject
to forfeiture pursuant to the provisions of this article. If the
defendant fails to admit or deny or to file a claim of interest in
the property or proceeds, the court shall enter a response of denial
on behalf of the defendant.
(c) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
(2) If the defendant is found guilty of the underlying offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
(d) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
defendant was engaged in actions in violation of Sections 5303, 5304,
5305, and 5306 and that the property specified in the petition
otherwise meets the criteria for forfeiture under Section 5320. If a
jury is the trier of fact, the verdict shall be unanimous in order to
impose the forfeiture.
5323. (a) Concurrent with, or subsequent to, the filing of the
petition, the prosecuting agency may move the superior court for the
following pendente lite orders to preserve the status quo of the
property alleged in the petition of forfeiture:
(1) An injunction to restrain all interested parties and enjoin
them from transferring, encumbering, hypothecating or otherwise
disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that such property
may be maintained and preserved.
(b) No preliminary injunction may be granted or receiver appointed
without notice, that meets the requirements of Section 5321, to all
the interested parties, including actual notice to targets of the
anticipated criminal action, and a hearing to determine that such an
order is necessary to preserve the property, pending the outcome of
the criminal proceedings, and that there is probable cause to believe
that the property alleged in the forfeiture proceedings are proceeds
or property interests forfeitable under Section 5320. However, a
temporary restraining order may issue pending that hearing pursuant
to the provisions of Section 527 of the Code of Civil Procedure.
(1) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the underlying criminal
proceeding, the court shall weigh the relative degree of certainty of
the outcome on the merits and the consequences to each of the
parties of granting the interim relief. If the prosecution is likely
to prevail on the merits and the potential harm to the public
outweighs the potential harm to the defendants and the interested
parties, the court should grant injunctive relief. The court shall
give significant weight to the following factors:
(A) The public interest in preserving liquid capital and other
financial assets pendente lite.
(B) The difficulty of preserving financial assets pendente lite
where the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of financial crimes.
(D) The likelihood that substantial public harm has occurred where
financial crimes are alleged to have been committed.
(2) In determining whether to issue a permanent injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency before the filing of a complaint in the underlying criminal
proceeding, the court shall weigh the relative degree of certainty of
the outcome on the merits and the consequences to each of the
parties of granting the interim relief.
(3) No injunctive order issued under this section shall impair the
ability of a defendant or interested party to pay the actual legal
fees or retainer for his or her legal defense to the criminal charges
and the petition for forfeiture.
(c) Notwithstanding any other provision of law, the court in
granting these motions may order a surety bond or undertaking to
preserve the property interests of the interested parties, but the
court shall give significant weight to the unique circumstances of
public agencies, as opposed to private litigants, in determining
whether to order a surety bond or undertaking.
(d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in the commission of the
violation of a crime enumerated in Section 5320.
5324. (a) If the trier of fact at the forfeiture hearing finds that
the alleged property or proceeds is forfeitable pursuant to Section
5320, the court shall declare that property or proceeds forfeited to
the state or local governmental entity, subject to distribution as
provided in Section 5325. No property solely owned by a bona fide
purchaser for value shall be subject to forfeiture.
(b) If the trier of fact at the forfeiture hearing finds that the
alleged property is forfeitable pursuant to Section 5320, but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding, the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local governmental
entity shall relinquish all claims to the property. If the holder of
the interest elects not to make that payment to the state or local
governmental entity, the property shall be deemed forfeited to the
state or local governmental entity and any indicia of ownership of
the property shall be forwarded. The appraised value shall be
determined as of the date judgment is entered either (a) by agreement
between the holder of the lien, mortgage, security interest, or
interest under a conditional sales contract and the governmental
entity involved or (b) if they cannot agree, then by a
court-appointed appraiser for the county in which the action is
brought. A person holding a valid lien, mortgage, security interest,
or interest under a conditional sales contract shall be paid the
appraised value of his or her interest.
(c) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the county if the district attorney is the
prosecutor, by the city if the city attorney is the prosecutor, or by
the Department of General Services if the Attorney General is the
prosecutor. Notice of the sale shall be provided by one publication
in a newspaper published and circulated in the city, community, or
locality where the sale is to take place.
5325. Notwithstanding that no response or claim has been filed
pursuant to Section 5322, in all cases where property is forfeited
pursuant to this article 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 holder of a valid lien, mortgage or security interest, if
any, and from the balance of any forfeited funds to any victim of a
crime enumerated in Section 5320 committed by the defendant, 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 such lienholders 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. The aggregate of
all money distributed pursuant to this subdivision and all money
received pursuant to a restitution order of a court shall not exceed
the amount of the person's interest in the property or proceeds.
(b) To the Department of General Services 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 under this
article.
(c) The balance of forfeiture funds remaining after the
obligations in subdivisions (a) and (b) have been satisfied shall be
paid to the general fund of the state or local governmental entity,
whichever prosecutes.
