11469. In order to ensure the proper utilization of the laws
permitting the seizure and forfeiture of property under this chapter,
the Legislature hereby establishes the following guidelines:
(a) Law enforcement is the principal objective of forfeiture.
Potential revenue must not be allowed to jeopardize the effective
investigation and prosecution of criminal offenses, officer safety,
the integrity of ongoing investigations, or the due process rights of
citizens.
(b) No prosecutor's or sworn law enforcement officer's employment
or salary shall be made to depend upon the level of seizures or
forfeitures he or she achieves.
(c) Whenever appropriate, prosecutors should seek criminal
sanctions as to the underlying criminal acts which give rise to the
forfeiture action.
(d) Seizing agencies shall have a manual detailing the statutory
grounds for forfeiture and all applicable policies and procedures.
The manual shall include procedures for prompt notice to
interestholders, the expeditious release of seized property, where
appropriate, and the prompt resolution of claims of innocent
ownership.
(e) Seizing agencies shall implement training for officers
assigned to forfeiture programs, which training should be ongoing.
(f) Seizing agencies shall avoid any appearance of impropriety in
the sale or acquisition of forfeited property.
(g) Seizing agencies shall not put any seized or forfeited
property into service.
(h) Unless otherwise provided by law, forfeiture proceeds shall be
maintained in a separate fund or account subject to appropriate
accounting controls and annual financial audits of all deposits and
expenditures.
(i) Seizing agencies shall ensure that seized property is
protected and its value preserved.
(j) Although civil forfeiture is intended to be remedial by
removing the tools and profits from those engaged in the illicit drug
trade, it can have harsh effects on property owners in some
circumstances. Therefore, law enforcement shall seek to protect the
interests of innocent property owners, guarantee adequate notice and
due process to property owners, and ensure that forfeiture serves the
remedial purpose of the law.
11470. The following are subject to forfeiture:
(a) All controlled substances which have been manufactured,
distributed, dispensed, or acquired in violation of this division.
(b) All raw materials, products, and equipment of any kind which
are used, or intended for use, in manufacturing, compounding,
processing, delivering, importing, or exporting any controlled
substance in violation of this division.
(c) All property except real property or a boat, airplane, or any
vehicle which is used, or intended for use, as a container for
property described in subdivision (a) or (b).
(d) All books, records, and research products and materials,
including formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this division.
(e) The interest of any registered owner of a boat, airplane, or
any vehicle other than an implement of husbandry, as defined in
Section 36000 of the Vehicle Code, which has been used as an
instrument to facilitate the manufacture of, or possession for sale
or sale of 14.25 grams or more of heroin or cocaine base as specified
in paragraph (1) of subdivision (f) of Section 11054, or a substance
containing 14.25 grams or more of heroin or cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054, or
14.25 grams or more of a substance containing heroin or cocaine base
as specified in paragraph (1) of subdivision (f) of Section 11054, or
28.5 grams or more of Schedule I controlled substances except
marijuana, peyote, or psilocybin; 10 pounds dry weight or more of
marijuana, peyote, or psilocybin; or 28.5 grams or more of cocaine,
as specified in paragraph (6) of subdivision (b) of Section 11055, or
methamphetamine; or a substance containing 28.5 grams or more of
cocaine, as specified in paragraph (6) of subdivision (b) of Section
11055, or methamphetamine; or 57 grams or more of a substance
containing cocaine, as specified in paragraph (6) of subdivision (b)
of Section 11055, or methamphetamine; or 28.5 grams or more of
Schedule II controlled substances. No interest in a vehicle which may
be lawfully driven on the highway with a class C, class M1, or class
M2 license, as prescribed in Section 12804 of the Vehicle Code, may
be forfeited under this subdivision if there is a community property
interest in the vehicle by a person other than the defendant and the
vehicle is the sole class C, class M1, or class M2 vehicle available
to the defendant's immediate family.
(f) All moneys, negotiable instruments, securities, or other
things of value furnished or intended to be furnished by any person
in exchange for a controlled substance, all proceeds traceable to
such an exchange, and all moneys, negotiable instruments, or
securities used or intended to be used to facilitate any violation of
Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5,
11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or
Section 182 of the Penal Code, or a felony violation of Section
11366.8 of this code, insofar as the offense involves manufacture,
sale, possession for sale, offer for sale, or offer to manufacture,
or conspiracy to commit at least one of those offenses, if the
exchange, violation, or other conduct which is the basis for the
forfeiture occurred within five years of the seizure of the property,
or the filing of a petition under this chapter, or the issuance of
an order of forfeiture of the property, whichever comes first.
(g) The real property of any property owner who is convicted of
violating Section 11366, 11366.5, or 11366.6 with respect to that
property. However, property which is used as a family residence or
for other lawful purposes, or which is owned by two or more persons,
one of whom had no knowledge of its unlawful use, shall not be
subject to forfeiture.
(h) Subject to the requirements of Section 11488.5 and except as
further limited by this subdivision to protect innocent parties who
claim a property interest acquired from a defendant, all right,
title, and interest in any personal property described in this
section shall vest in the state upon commission of the act giving
rise to forfeiture under this chapter, if the state or local
governmental entity proves a violation of Section 11351, 11351.5,
11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11382, or 11383 of this code, or Section 182 of the Penal
Code, or a felony violation of Section 11366.8 of this code, insofar
as the offense involves the manufacture, sale, possession for sale,
offer for sale, offer to manufacture, or conspiracy to commit at
least one of those offenses, in accordance with the burden of proof
set forth in paragraph (1) of subdivision (i) of Section 11488.4 or,
in the case of cash or negotiable instruments in excess of
twenty-five thousand dollars ($25,000), paragraph (4) of subdivision
(i) of Section 11488.4.
The operation of the special vesting rule established by this
subdivision shall be limited to circumstances where its application
will not defeat the claim of any person, including a bona fide
purchaser or encumbrancer who, pursuant to Section 11488.5, 11488.6,
or 11489, claims an interest in the property seized, notwithstanding
that the interest in the property being claimed was acquired from a
defendant whose property interest would otherwise have been subject
to divestment pursuant to this subdivision.
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 prior to the entry of judgment for the recovery of
expenses. However, 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.
11470.2. (a) In lieu of a civil action for the recovery of expenses
as provided in Section 11470.1, the prosecuting attorney in a
criminal proceeding may, upon conviction of the underlying offense,
seek the recovery of all expenses recoverable under Section 11470.1
from:
(1) Any person who manufacturers 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. The trier of fact shall
make an award of expenses, if proven, which shall be enforceable as
any civil judgment. If probation is granted, the court may order
payment of the expenses as a condition of probation. All expenses
recovered pursuant to this section shall be remitted to the law
enforcement agency which incurred them.
(b) The prosecuting attorney may, in conjunction with the criminal
proceeding, file a petition for recovery of expenses with the
superior court of the county in which the defendant has been charged
with the underlying offense. The petition shall allege that the
defendant had manufactured or cultivated a controlled substance in
violation of Division 10 (commencing with Section 11000) of the
Health and Safety Code and that expenses were incurred in seizing,
eradicating, or destroying the controlled substance or its
precursors. The petition shall also state the amount to be assessed.
The prosecuting attorney shall make service of process of a notice of
that petition to the defendant.
(c) The defendant may admit to or deny the petition for recovery
of expenses. If the defendant admits the allegations of the petition,
the court shall rule for the prosecuting attorney and enter a
judgment for recovery of the expenses incurred.
(d) If the defendant denies the petition or declines to admit to
it, the petition shall be heard in the superior court in which the
underlying criminal offense will be tried and shall be promptly heard
following the defendant's conviction on the underlying offense. The
hearing shall be held either before the same jury or before a new
jury in the discretion of the court, unless waived by the consent of
all parties.
(e) At the hearing, the burden of proof as to the amount of
expenses recoverable shall be on the prosecuting attorney and shall
be by a preponderance of the evidence.
(f) 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.
11470.3. (a) Section 11470 shall be applicable to property owned
by, or in the possession of, minors.
(b) The procedures for the forfeiture of property that comes
within Section 11470 shall be applicable to minors.
(c) Notwithstanding the provisions of this chapter, if a petition
has been filed alleging that the minor is a person described in
Section 602 of the Welfare and Institutions Code because of a
violation which is the basis for the seizure and forfeiture of
property under this chapter, any related forfeiture hearing shall be
continued until the adjudication of the petition. The forfeiture
hearing shall not be conducted in juvenile court.
11470.4. The provisions of this chapter apply to any minor who has
been found to be a person described in Section 602 of the Welfare and
Institutions Code because of a violation of Section 11351, 11351.5,
11352, 11355, 11366, 11366.5, 11366.6, 11378.5, 11379, 11379.5,
11379.6, or 11382.
11471. Property 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:
(a) The seizure is incident to an arrest or a search under a
search warrant.
(b) 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.
(c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used
or is intended to be used in violation of this division.
(e) 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.
(f) 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 such records were seized.
11471.5. A peace officer making a seizure pursuant to Section 11471
shall notify the Franchise Tax Board where there is reasonable cause
to believe that the value of the seized property exceeds five
thousand dollars ($5,000).
11472. Controlled substances and any device, contrivance,
instrument, or paraphernalia used for unlawfully using or
administering a controlled substance, which are possessed in
violation of this division, may be seized by any peace officer and in
the aid of such seizure a search warrant may be issued as prescribed
by law.
11473. (a) All seizures under provisions of this chapter, except
seizures of vehicles, boats, or airplanes, as specified in
subdivision (e) of Section 11470, or seizures of moneys, negotiable
instruments, securities, or other things of value as specified in
subdivision (f) of Section 11470, shall, upon conviction of the owner
or defendant, be ordered destroyed by the court in which conviction
was had.
(b) Law enforcement may request of the court that certain
uncontaminated science equipment be relinquished to a school or
school district for science classroom education in lieu of
destruction.
11473.5. (a) All seizures of controlled substances, instruments, or
paraphernalia used for unlawfully using or administering a
controlled substance which are in possession of any city, county, or
state official as found property, or as the result of a case in which
no trial was had or which has been disposed of by way of dismissal
or otherwise than by way of conviction, shall be destroyed by order
of the court, unless the court finds that the controlled substances,
instruments, or paraphernalia were lawfully possessed by the
defendant.
(b) If the court finds that the property was not lawfully
possessed by the defendant, law enforcement may request of the court
that certain uncontaminated instruments or paraphernalia be
relinquished to a school or school district for science classroom
education in lieu of destruction.
11474. A court order for the destruction of controlled substances,
instruments, or paraphernalia pursuant to the provisions of Section
11473 or 11473.5 may be carried out by a police or sheriff's
department, the Department of Justice, the Department of the
California Highway Patrol, or the Department of Alcoholic Beverage
Control. The court order shall specify the agency responsible for the
destruction. Controlled substances, instruments, or paraphernalia
not in the possession of the designated agency at the time the order
of the court is issued shall be delivered to the designated agency
for destruction in compliance with the order.
11475. Controlled substances listed in Schedule I that are
possessed, transferred, sold, or offered for sale in violation of
this division are contraband and shall be seized and summarily
forfeited to the state. Controlled substances listed in Schedule I,
which are seized or come into the possession of the state, the owners
of which are unknown, are contraband and shall be summarily
forfeited to the state.
11476. Species of plants from which controlled substances in
Schedules I and II may be derived which have been planted or
cultivated in violation of this division, or of which the owners or
cultivators are unknown, or which are wild growths, may be seized and
summarily forfeited to the state.
11477. The failure, upon demand by a peace officer of the person in
occupancy or in control of land or premises upon which the species
of plants are growing or being stored, to produce an appropriate
registration, or proof that he is the holder thereof, constitutes
authority for the seizure and forfeiture of the plants.
11478. Marijuana may be provided by the Attorney General to the
heads of research projects which have been registered by the Attorney
General, and which have been approved by the research advisory panel
pursuant to Section 11480.
The head of the approved research project shall personally receipt
for such quantities of marijuana and shall make a record of their
disposition. The receipt and record shall be retained by the Attorney
General. The head of the approved research project shall also, at
intervals and in the manner required by the research advisory panel,
report the progress or conclusions of the research project.
11479. Notwithstanding Sections 11473 and 11473.5, at any time
after seizure by a law enforcement agency of a suspected controlled
substance, that amount in excess of 10 pounds in gross weight may be
destroyed without a court order by the chief of the law enforcement
agency or a designated subordinate. Destruction shall not take place
pursuant to this section until all of the following requirements are
satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. These samples shall be in
addition to the 10 pounds required above. When the suspected
controlled substance consists of growing or harvested marijuana
plants, at least one 10 pound sample (which may include stalks,
branches, or leaves) and five representative samples consisting of
leaves or buds shall be retained for evidentiary purposes from the
total amount of suspected controlled substances to be destroyed.
(b) Photographs have been taken which reasonably demonstrate the
total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating that weight after dimensional measurement
of the total suspected controlled substance.
(d) The chief of the law enforcement agency has determined that it
is not reasonably possible to preserve the suspected controlled
substance in place, or to remove the suspected controlled substance
to another location. In making this determination, the difficulty of
transporting and storing the suspected controlled substance to
another site and the storage facilities may be taken into
consideration.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which has jurisdiction over any pending criminal
proceedings pertaining to that suspected controlled substance,
reciting the applicable information required by subdivisions (a),
(b), (c), and (d) together with information establishing the location
of the suspected controlled substance, and specifying the date and
time of the destruction. In the event that there are no criminal
proceedings pending which pertain to that suspected controlled
substance, the affidavit may be filed in any court within the county
which would have jurisdiction over a person against whom those
criminal charges might be filed.
11479.1. (a) Notwithstanding the provisions of Sections 11473,
11473.5, and 11479, at any time after seizure by a law enforcement
agency and identification by a forensic chemist or criminalist of
phencyclidine, or an analog thereof, that amount in excess of one
gram of a crystalline substance containing phencyclidine or its
analog, 10 milliliters of a liquid substance containing phencyclidine
or its analog, two grams of plant material containing phencyclidine
or its analog, or five hand-rolled cigarettes treated with
phencyclidine or its analog, may be destroyed without a court order
by the chief of the law enforcement agency or a designated
subordinate. Destruction shall not take place pursuant to this
section until all of the following requirements are satisfied:
(1) At least one gram of a crystalline substance containing
phencyclidine or its analog, 10 milliliters of a liquid substance
containing phencyclidine or its analog, two grams of plant material
containing phencyclidine or its analog, or five hand-rolled
cigarettes treated with phencyclidine or its analog have been taken
as samples from the phencyclidine or analog to be destroyed.
(2) Photographs have been taken which reasonably demonstrate the
total amount of phencyclidine or its analog to be destroyed.
(3) The gross weight of the phencyclidine or its analog has been
determined by actually weighing the phencyclidine or analog.
(b) Subsequent to any destruction of phencyclidine or its analog,
an affidavit shall be filed within 30 days in the court which has
jurisdiction over any pending criminal proceedings pertaining to that
phencyclidine or its analog, reciting the applicable information
required by paragraphs (1), (2), and (3) of subdivision (a), together
with information establishing the location of the phencyclidine or
analog and specifying the date and time of the destruction. In the
event that there are no criminal proceedings pending which pertain to
that phencyclidine or analog, the affidavit may be filed in any
court within the county which would have jurisdiction over a person
against whom these criminal charges might be filed.
11479.2. Notwithstanding the provisions of Sections 11473, 11473.5,
11474, 11479, and 11479.1, at any time after seizure by a law
enforcement agency of a suspected controlled substance, except
marijuana, any amount, as determined by the court, in excess of 57
grams may, by court order, be destroyed by the chief of a law
enforcement agency or a designated subordinate. Destruction shall not
take place pursuant to this section until all of the following
requirements are satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. Those samples shall be in
addition to the 57 grams required above and each sample shall weigh
not less than one gram at the time the sample is collected.
(b) Photographs have been taken which reasonably demonstrate the
total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating such weight after dimensional measurement
of the total suspected controlled substance.
(d) In cases involving controlled substances suspected of
containing cocaine or methamphetamine, an analysis has determined the
qualitative and quantitative nature of the suspected controlled
substance.
(e) The law enforcement agency with custody of the controlled
substance sought to be destroyed has filed a written motion for the
order of destruction in the court which has jurisdiction over any
pending criminal proceeding in which a defendant is charged by
accusatory pleading with a crime specifically involving the suspected
controlled substance sought to be destroyed. The motion shall, by
affidavit of the chief of the law enforcement agency or designated
subordinate, recite the applicable information required by
subdivisions (a), (b), (c), and (d), together with information
establishing the location of the suspected controlled substance and
the title of any pending criminal proceeding as defined in this
subdivision. The motion shall bear proof of service upon all parties
to any pending criminal proceeding. No motion shall be made when a
defendant is without counsel until the defendant has entered his or
her plea to the charges.
(f) The order for destruction shall issue pursuant to this section
upon the motion and affidavit in support of the order, unless within
20 days after application for the order, a defendant has requested,
in writing, a hearing on the motion. Within 10 days after the filing
of that request, or a longer period of time upon good cause shown by
either party, the court shall conduct a hearing on the motion in
which each party to the motion for destruction shall be permitted to
call and examine witnesses. The hearing shall be recorded. Upon
conclusion of the hearing, if the court finds that the defendant
would not be prejudiced by the destruction, it shall grant the motion
and make an order for destruction. In making the order, the court
shall ensure that the representative samples to be retained are of
sufficient quantities to allow for qualitative analyses by both the
prosecution and the defense. Any order for destruction pursuant to
this section shall include the applicable information required by
subdivisions (a), (b), (c), (d), and (e) and the name of the agency
responsible for the destruction. Unless waived, the order shall
provide for a 10-day delay prior to destruction in order to allow
expert analysis of the controlled substance by the defense.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which ordered destruction stating the location of the
retained, suspected controlled substance and specifying the date and
time of destruction.
This section does not apply to seizures involving hazardous
chemicals or controlled substances in mixture or combination with
hazardous chemicals.
11479.5. (a) Notwithstanding Sections 11473 and 11473.5, at any
time after seizure by a law enforcement agency of a suspected
hazardous chemical, the chemical's container, or any item
contaminated with a hazardous substance believed to have been used or
intended to have been used in the unlawful manufacture of controlled
substances, that amount in excess of one fluid ounce if liquid, or
one avoirdupois ounce if solid, of each different type of suspected
hazardous chemical, its container, and any item contaminated with a
hazardous substance may be disposed of without a court order by the
seizing agency. For the purposes of this section, "hazardous chemical"
means any material that is believed by the chief of the law
enforcement agency, or his or her designee, to be toxic,
carcinogenic, explosive, corrosive, or flammable, and that is
believed by the chief of the law enforcement agency, or his or her
designee, to have been used or intended to have been used in the
unlawful manufacture of controlled substances.
(b) Destruction pursuant to this section of suspected hazardous
chemicals or suspected hazardous chemicals and controlled substances
in combination, or the chemical containers and items contaminated
with a hazardous substance, shall not take place until all of the
following requirements are met:
(1) At least a one ounce sample is taken from each different type
of suspected hazardous chemical to be destroyed.
(2) At least a one ounce sample has been taken from each container
of a mixture of a suspected hazardous chemical with a suspected
controlled substance.
(3) Photographs have been taken which reasonably demonstrate the
total amount of suspected controlled substances and suspected
hazardous chemicals to be destroyed.
(4) The gross weight or volume of the suspected hazardous chemical
seized has been determined.
(5) Photographs have been taken of the chemical containers and
items contaminated with a hazardous substance that reasonably
demonstrate their size.
(c) Subsequent to any disposal of a suspected hazardous chemical,
its container, or any item contaminated with a hazardous substance
pursuant to this section, the law enforcement agency involved shall
maintain records concerning the details of its compliance with, and
reciting the applicable information required by paragraphs (1), (2),
(3), (4), and (5) of subdivision (b), together with the information
establishing the location of the suspected hazardous chemical, its
container, and any item contaminated with a hazardous substance, and
specifying the date and time of the disposal.
(d) (1) Subsequent to any destruction of a suspected controlled
substance in combination with a hazardous chemical or any item
contaminated with a hazardous substance pursuant to this section, an
affidavit containing applicable information required by paragraphs
(1), (2), (3), (4), and (5) of subdivision (b) shall be filed within
30 days in the court that issued the search warrant.
(2) If the disposed materials were seized without a warrant, an
affidavit containing applicable information required by paragraphs
(1), (2), (3), (4), and (5) of subdivision (b) shall be filed in the
court that has jurisdiction over any criminal proceedings pertaining
to the suspected controlled substance after the criminal proceedings
are initiated.
(e) A law enforcement agency responsible for the disposal of any
hazardous chemical shall comply with the provisions of Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health and
Safety Code, as well as all applicable state and federal statutes and
regulations.
11480. The Legislature finds that there is a need to encourage
further research into the nature and effects of marijuana and
hallucinogenic drugs and to coordinate research efforts on such
subjects.
There is a Research Advisory Panel which consists of a
representative of the State Department of Health Services, a
representative of the California State Board of Pharmacy, a
representative of the Attorney General, a representative of the
University of California who shall be a pharmacologist, a physician,
or a person holding a doctorate degree in the health sciences, a
representative of a private university in this state who shall be a
pharmacologist, a physician, or a person holding a doctorate degree
in the health sciences, a representative of a statewide professional
medical society in this state who shall be engaged in the private
practice of medicine and shall be experienced in treating controlled
substance dependency, a representative appointed by and serving at
the pleasure of the Governor who shall have experience in drug abuse,
cancer, or controlled substance research and who is either a
registered nurse, licensed pursuant to Chapter 6 (commencing with
Section 2700) of Division 2 of the Business and Professions Code, or
other health professional. The Governor shall annually designate the
private university and the professional medical society represented
on the panel. Members of the panel shall be appointed by the heads of
the entities to be represented, and they shall serve at the pleasure
of the appointing power.
The Research Advisory Panel shall appoint two special members to
the Research Advisory Panel, who shall serve at the pleasure of the
Research Advisory Panel only during the period Article 6 (commencing
with Section 11260) of Chapter 5 remains effective. The additional
members shall be physicians and surgeons, and who are board certified
in oncology, ophthalmology, or psychiatry.
The panel shall annually select a chairman from among its members.
The panel may hold hearings on, and in other ways study, research
projects concerning marijuana or hallucinogenic drugs in this state.
Members of the panel shall serve without compensation, but shall be
reimbursed for any actual and necessary expenses incurred in
connection with the performance of their duties.
The panel may approve research projects, which have been
registered by the Attorney General, into the nature and effects of
marijuana or hallucinogenic drugs, and shall inform the Attorney
General of the head of the approved research projects which are
entitled to receive quantities of marijuana pursuant to Section
11478.
The panel may withdraw approval of a research project at any time,
and when approval is withdrawn shall notify the head of the research
project to return any quantities of marijuana to the Attorney
General.
The panel shall report annually to the Legislature and the
Governor those research projects approved by the panel, the nature of
each research project, and, where available, the conclusions of the
research project.
11481. The Research Advisory Panel may hold hearings on, and in
other ways study, research projects concerning the treatment of abuse
of controlled substances.
The panel may approve research projects, which have been
registered by the Attorney General, concerning the treatment of abuse
of controlled substances and shall inform the chief of such
approval. The panel may withdraw approval of a research project at
any time and when approval is withdrawn shall so notify the chief.
The panel shall, annually and in the manner determined by the
panel, report to the Legislature and the Governor those research
projects approved by the panel, the nature of each research project,
and where available, the conclusions of the research project.
11483. No provision of this division shall be construed to prohibit
the establishment and effective operation of a narcotic treatment
program licensed pursuant to Article 4 (commencing with Section
11885) of Chapter 1 of Part 3 of Division 10.5.
11485. Any peace officer of this state who, incident to a search
under a search warrant issued for a violation of Section 11358 with
respect to which no prosecution of a defendant results, seizes
personal property suspected of being used in the planting,
cultivation, harvesting, drying, processing, or transporting of
marijuana, shall, if the seized personal property is not being held
for evidence or destroyed as contraband, and if the owner of the
property is unknown or has not claimed the property, provide notice
regarding the seizure and manner of reclamation of the property to
any owner or tenant of real property on which the property was
seized. In addition, this notice shall be posted at the location of
seizure and shall be published at least once in a newspaper of
general circulation in the county in which the property was seized.
If, after 90 days following the first publication of the notice, no
owner appears and proves his or her ownership, the seized personal
property shall be deemed to be abandoned and may be disposed of by
sale to the public at public auction as set forth in Article 1
(commencing with Section 2080) of Chapter 4 of Title 6 of Part 4 of
Division 3 of the Civil Code, or may be disposed of by transfer to a
government agency or community service organization. Any profit from
the sale or transfer of the property shall be expended for
investigative services with respect to crimes involving marijuana.
11488. (a) Any peace officer of this state, subsequent to making or
attempting to make an arrest for a violation of Section 11351,
11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11382 of this code, or Section 182 of the Penal Code
insofar as the offense involves manufacture, sale, purchase for the
purpose of sale, possession for sale or offer to manufacture or sell,
or conspiracy to commit one of those offenses, may seize any item
subject to forfeiture under subdivisions (a) to (f), inclusive, of
Section 11470. The peace officer shall also notify the Franchise Tax
Board of a seizure where there is reasonable cause to believe that
the value of the seized property exceeds five thousand dollars
($5,000).
(b) Receipts for property seized pursuant to this section shall be
delivered to any person out of whose possession such property was
seized, in accordance with Section 1412 of the Penal Code. In the
event property seized was not seized out of anyone's possession,
receipt for the property shall be delivered to the individual in
possession of the premises at which the property was seized.
(c) There shall be a presumption affecting the burden of proof
that the person to whom a receipt for property was issued is the
owner thereof. This presumption may, however, be rebutted at the
forfeiture hearing specified in Section 11488.5.
11488.1. Property seized pursuant to Section 11488 may, where
appropriate, be held for evidence. The Attorney General or the
district attorney for the jurisdiction involved shall institute and
maintain the proceedings.
11488.2. Within 15 days after the seizure, if the peace officer
does not hold the property seized pursuant to Section 11488 for
evidence or if the law enforcement agency for which the peace officer
is employed does not refer the matter in writing for the institution
of forfeiture proceedings by the Attorney General or the district
attorney pursuant to Section 11488.1, the officer shall comply with
any notice to withhold issued with respect to the property by the
Franchise Tax Board. If no notice to withhold has been issued with
respect to the property by the Franchise Tax Board, the officer shall
return the property to the individual designated in the receipt
therefor or if the property is a vehicle, boat, or airplane, it shall
be returned to the registered owner.
11488.4. (a) 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 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 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.
(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) 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 that probable
cause exists to believe that the underlying or related criminal
violations have occurred.
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.
(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) 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) 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 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 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.
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 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, 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 property to be distributed
as set forth in Section 11489.
(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. 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.
11488.6. (a) If the court or jury at the forfeiture hearing finds
that the property is forfeitable pursuant to Section 11470, but does
not find that a person having a valid ownership interest, which
includes, but is not limited to, a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
such interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
such person is less than the appraised value of the property, such
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding the amount of the equity, which
shall be deemed to be the difference between the appraised value and
the amount of the lien, mortgage, security interest, or interest
under a conditional sales contract. Upon such payment, the state or
local governmental entity shall relinquish all claims to the
property. If the holder of the interest elects not to make such
payment to the state or local governmental entity, the property shall
be deemed forfeited to the state or local governmental entity and
the ownership certificate shall be forwarded. The appraised value
shall be determined as of the date judgment is entered on a wholesale
basis either by agreement between the legal owner and the
governmental entity involved, or if they cannot agree, then by the
inheritance tax appraiser for the county in which the action is
brought. A person having a valid ownership interest, which includes,
but is not limited to, a valid lien, mortgage, security interest, or
interest under a conditional sales contract shall be paid the
appraised value of his or her interest in accordance with the
provisions of Section 11489.
(b) If the amount due to a person having a valid ownership
interest, which includes, but is not limited to, 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 Department of General Services or by
the local governmental entity which shall provide notice of such
sale by one publication in a newspaper published and circulated in
the city, community, or locality where the sale is to take place.
(c) The proceeds of sale pursuant to subdivision (b) shall be
first distributed in accordance with the provisions of Section 11489.
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 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 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 atto
11469. In order to ensure the proper utilization of the laws
permitting the seizure and forfeiture of property under this chapter,
the Legislature hereby establishes the following guidelines:
(a) Law enforcement is the principal objective of forfeiture.
Potential revenue must not be allowed to jeopardize the effective
investigation and prosecution of criminal offenses, officer safety,
the integrity of ongoing investigations, or the due process rights of
citizens.
(b) No prosecutor's or sworn law enforcement officer's employment
or salary shall be made to depend upon the level of seizures or
forfeitures he or she achieves.
(c) Whenever appropriate, prosecutors should seek criminal
sanctions as to the underlying criminal acts which give rise to the
forfeiture action.
(d) Seizing agencies shall have a manual detailing the statutory
grounds for forfeiture and all applicable policies and procedures.
The manual shall include procedures for prompt notice to
interestholders, the expeditious release of seized property, where
appropriate, and the prompt resolution of claims of innocent
ownership.
(e) Seizing agencies shall implement training for officers
assigned to forfeiture programs, which training should be ongoing.
(f) Seizing agencies shall avoid any appearance of impropriety in
the sale or acquisition of forfeited property.
(g) Seizing agencies shall not put any seized or forfeited
property into service.
(h) Unless otherwise provided by law, forfeiture proceeds shall be
maintained in a separate fund or account subject to appropriate
accounting controls and annual financial audits of all deposits and
expenditures.
(i) Seizing agencies shall ensure that seized property is
protected and its value preserved.
(j) Although civil forfeiture is intended to be remedial by
removing the tools and profits from those engaged in the illicit drug
trade, it can have harsh effects on property owners in some
circumstances. Therefore, law enforcement shall seek to protect the
interests of innocent property owners, guarantee adequate notice and
due process to property owners, and ensure that forfeiture serves the
remedial purpose of the law.
11470. The following are subject to forfeiture:
(a) All controlled substances which have been manufactured,
distributed, dispensed, or acquired in violation of this division.
(b) All raw materials, products, and equipment of any kind which
are used, or intended for use, in manufacturing, compounding,
processing, delivering, importing, or exporting any controlled
substance in violation of this division.
(c) All property except real property or a boat, airplane, or any
vehicle which is used, or intended for use, as a container for
property described in subdivision (a) or (b).
(d) All books, records, and research products and materials,
including formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this division.
(e) The interest of any registered owner of a boat, airplane, or
any vehicle other than an implement of husbandry, as defined in
Section 36000 of the Vehicle Code, which has been used as an
instrument to facilitate the manufacture of, or possession for sale
or sale of 14.25 grams or more of heroin or cocaine base as specified
in paragraph (1) of subdivision (f) of Section 11054, or a substance
containing 14.25 grams or more of heroin or cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054, or
14.25 grams or more of a substance containing heroin or cocaine base
as specified in paragraph (1) of subdivision (f) of Section 11054, or
28.5 grams or more of Schedule I controlled substances except
marijuana, peyote, or psilocybin; 10 pounds dry weight or more of
marijuana, peyote, or psilocybin; or 28.5 grams or more of cocaine,
as specified in paragraph (6) of subdivision (b) of Section 11055, or
methamphetamine; or a substance containing 28.5 grams or more of
cocaine, as specified in paragraph (6) of subdivision (b) of Section
11055, or methamphetamine; or 57 grams or more of a substance
containing cocaine, as specified in paragraph (6) of subdivision (b)
of Section 11055, or methamphetamine; or 28.5 grams or more of
Schedule II controlled substances. No interest in a vehicle which may
be lawfully driven on the highway with a class C, class M1, or class
M2 license, as prescribed in Section 12804 of the Vehicle Code, may
be forfeited under this subdivision if there is a community property
interest in the vehicle by a person other than the defendant and the
vehicle is the sole class C, class M1, or class M2 vehicle available
to the defendant's immediate family.
(f) All moneys, negotiable instruments, securities, or other
things of value furnished or intended to be furnished by any person
in exchange for a controlled substance, all proceeds traceable to
such an exchange, and all moneys, negotiable instruments, or
securities used or intended to be used to facilitate any violation of
Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5,
11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or
Section 182 of the Penal Code, or a felony violation of Section
11366.8 of this code, insofar as the offense involves manufacture,
sale, possession for sale, offer for sale, or offer to manufacture,
or conspiracy to commit at least one of those offenses, if the
exchange, violation, or other conduct which is the basis for the
forfeiture occurred within five years of the seizure of the property,
or the filing of a petition under this chapter, or the issuance of
an order of forfeiture of the property, whichever comes first.
(g) The real property of any property owner who is convicted of
violating Section 11366, 11366.5, or 11366.6 with respect to that
property. However, property which is used as a family residence or
for other lawful purposes, or which is owned by two or more persons,
one of whom had no knowledge of its unlawful use, shall not be
subject to forfeiture.
(h) Subject to the requirements of Section 11488.5 and except as
further limited by this subdivision to protect innocent parties who
claim a property interest acquired from a defendant, all right,
title, and interest in any personal property described in this
section shall vest in the state upon commission of the act giving
rise to forfeiture under this chapter, if the state or local
governmental entity proves a violation of Section 11351, 11351.5,
11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11382, or 11383 of this code, or Section 182 of the Penal
Code, or a felony violation of Section 11366.8 of this code, insofar
as the offense involves the manufacture, sale, possession for sale,
offer for sale, offer to manufacture, or conspiracy to commit at
least one of those offenses, in accordance with the burden of proof
set forth in paragraph (1) of subdivision (i) of Section 11488.4 or,
in the case of cash or negotiable instruments in excess of
twenty-five thousand dollars ($25,000), paragraph (4) of subdivision
(i) of Section 11488.4.
The operation of the special vesting rule established by this
subdivision shall be limited to circumstances where its application
will not defeat the claim of any person, including a bona fide
purchaser or encumbrancer who, pursuant to Section 11488.5, 11488.6,
or 11489, claims an interest in the property seized, notwithstanding
that the interest in the property being claimed was acquired from a
defendant whose property interest would otherwise have been subject
to divestment pursuant to this subdivision.
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 prior to the entry of judgment for the recovery of
expenses. However, 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.
11470.2. (a) In lieu of a civil action for the recovery of expenses
as provided in Section 11470.1, the prosecuting attorney in a
criminal proceeding may, upon conviction of the underlying offense,
seek the recovery of all expenses recoverable under Section 11470.1
from:
(1) Any person who manufacturers 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. The trier of fact shall
make an award of expenses, if proven, which shall be enforceable as
any civil judgment. If probation is granted, the court may order
payment of the expenses as a condition of probation. All expenses
recovered pursuant to this section shall be remitted to the law
enforcement agency which incurred them.
(b) The prosecuting attorney may, in conjunction with the criminal
proceeding, file a petition for recovery of expenses with the
superior court of the county in which the defendant has been charged
with the underlying offense. The petition shall allege that the
defendant had manufactured or cultivated a controlled substance in
violation of Division 10 (commencing with Section 11000) of the
Health and Safety Code and that expenses were incurred in seizing,
eradicating, or destroying the controlled substance or its
precursors. The petition shall also state the amount to be assessed.
The prosecuting attorney shall make service of process of a notice of
that petition to the defendant.
(c) The defendant may admit to or deny the petition for recovery
of expenses. If the defendant admits the allegations of the petition,
the court shall rule for the prosecuting attorney and enter a
judgment for recovery of the expenses incurred.
(d) If the defendant denies the petition or declines to admit to
it, the petition shall be heard in the superior court in which the
underlying criminal offense will be tried and shall be promptly heard
following the defendant's conviction on the underlying offense. The
hearing shall be held either before the same jury or before a new
jury in the discretion of the court, unless waived by the consent of
all parties.
(e) At the hearing, the burden of proof as to the amount of
expenses recoverable shall be on the prosecuting attorney and shall
be by a preponderance of the evidence.
(f) 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.
11470.3. (a) Section 11470 shall be applicable to property owned
by, or in the possession of, minors.
(b) The procedures for the forfeiture of property that comes
within Section 11470 shall be applicable to minors.
(c) Notwithstanding the provisions of this chapter, if a petition
has been filed alleging that the minor is a person described in
Section 602 of the Welfare and Institutions Code because of a
violation which is the basis for the seizure and forfeiture of
property under this chapter, any related forfeiture hearing shall be
continued until the adjudication of the petition. The forfeiture
hearing shall not be conducted in juvenile court.
11470.4. The provisions of this chapter apply to any minor who has
been found to be a person described in Section 602 of the Welfare and
Institutions Code because of a violation of Section 11351, 11351.5,
11352, 11355, 11366, 11366.5, 11366.6, 11378.5, 11379, 11379.5,
11379.6, or 11382.
11471. Property 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:
(a) The seizure is incident to an arrest or a search under a
search warrant.
(b) 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.
(c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used
or is intended to be used in violation of this division.
(e) 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.
(f) 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 such records were seized.
11471.5. A peace officer making a seizure pursuant to Section 11471
shall notify the Franchise Tax Board where there is reasonable cause
to believe that the value of the seized property exceeds five
thousand dollars ($5,000).
11472. Controlled substances and any device, contrivance,
instrument, or paraphernalia used for unlawfully using or
administering a controlled substance, which are possessed in
violation of this division, may be seized by any peace officer and in
the aid of such seizure a search warrant may be issued as prescribed
by law.
11473. (a) All seizures under provisions of this chapter, except
seizures of vehicles, boats, or airplanes, as specified in
subdivision (e) of Section 11470, or seizures of moneys, negotiable
instruments, securities, or other things of value as specified in
subdivision (f) of Section 11470, shall, upon conviction of the owner
or defendant, be ordered destroyed by the court in which conviction
was had.
(b) Law enforcement may request of the court that certain
uncontaminated science equipment be relinquished to a school or
school district for science classroom education in lieu of
destruction.
11473.5. (a) All seizures of controlled substances, instruments, or
paraphernalia used for unlawfully using or administering a
controlled substance which are in possession of any city, county, or
state official as found property, or as the result of a case in which
no trial was had or which has been disposed of by way of dismissal
or otherwise than by way of conviction, shall be destroyed by order
of the court, unless the court finds that the controlled substances,
instruments, or paraphernalia were lawfully possessed by the
defendant.
(b) If the court finds that the property was not lawfully
possessed by the defendant, law enforcement may request of the court
that certain uncontaminated instruments or paraphernalia be
relinquished to a school or school district for science classroom
education in lieu of destruction.
11474. A court order for the destruction of controlled substances,
instruments, or paraphernalia pursuant to the provisions of Section
11473 or 11473.5 may be carried out by a police or sheriff's
department, the Department of Justice, the Department of the
California Highway Patrol, or the Department of Alcoholic Beverage
Control. The court order shall specify the agency responsible for the
destruction. Controlled substances, instruments, or paraphernalia
not in the possession of the designated agency at the time the order
of the court is issued shall be delivered to the designated agency
for destruction in compliance with the order.
11475. Controlled substances listed in Schedule I that are
possessed, transferred, sold, or offered for sale in violation of
this division are contraband and shall be seized and summarily
forfeited to the state. Controlled substances listed in Schedule I,
which are seized or come into the possession of the state, the owners
of which are unknown, are contraband and shall be summarily
forfeited to the state.
11476. Species of plants from which controlled substances in
Schedules I and II may be derived which have been planted or
cultivated in violation of this division, or of which the owners or
cultivators are unknown, or which are wild growths, may be seized and
summarily forfeited to the state.
11477. The failure, upon demand by a peace officer of the person in
occupancy or in control of land or premises upon which the species
of plants are growing or being stored, to produce an appropriate
registration, or proof that he is the holder thereof, constitutes
authority for the seizure and forfeiture of the plants.
11478. Marijuana may be provided by the Attorney General to the
heads of research projects which have been registered by the Attorney
General, and which have been approved by the research advisory panel
pursuant to Section 11480.
The head of the approved research project shall personally receipt
for such quantities of marijuana and shall make a record of their
disposition. The receipt and record shall be retained by the Attorney
General. The head of the approved research project shall also, at
intervals and in the manner required by the research advisory panel,
report the progress or conclusions of the research project.
11479. Notwithstanding Sections 11473 and 11473.5, at any time
after seizure by a law enforcement agency of a suspected controlled
substance, that amount in excess of 10 pounds in gross weight may be
destroyed without a court order by the chief of the law enforcement
agency or a designated subordinate. Destruction shall not take place
pursuant to this section until all of the following requirements are
satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. These samples shall be in
addition to the 10 pounds required above. When the suspected
controlled substance consists of growing or harvested marijuana
plants, at least one 10 pound sample (which may include stalks,
branches, or leaves) and five representative samples consisting of
leaves or buds shall be retained for evidentiary purposes from the
total amount of suspected controlled substances to be destroyed.
(b) Photographs have been taken which reasonably demonstrate the
total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating that weight after dimensional measurement
of the total suspected controlled substance.
(d) The chief of the law enforcement agency has determined that it
is not reasonably possible to preserve the suspected controlled
substance in place, or to remove the suspected controlled substance
to another location. In making this determination, the difficulty of
transporting and storing the suspected controlled substance to
another site and the storage facilities may be taken into
consideration.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which has jurisdiction over any pending criminal
proceedings pertaining to that suspected controlled substance,
reciting the applicable information required by subdivisions (a),
(b), (c), and (d) together with information establishing the location
of the suspected controlled substance, and specifying the date and
time of the destruction. In the event that there are no criminal
proceedings pending which pertain to that suspected controlled
substance, the affidavit may be filed in any court within the county
which would have jurisdiction over a person against whom those
criminal charges might be filed.
11479.1. (a) Notwithstanding the provisions of Sections 11473,
11473.5, and 11479, at any time after seizure by a law enforcement
agency and identification by a forensic chemist or criminalist of
phencyclidine, or an analog thereof, that amount in excess of one
gram of a crystalline substance containing phencyclidine or its
analog, 10 milliliters of a liquid substance containing phencyclidine
or its analog, two grams of plant material containing phencyclidine
or its analog, or five hand-rolled cigarettes treated with
phencyclidine or its analog, may be destroyed without a court order
by the chief of the law enforcement agency or a designated
subordinate. Destruction shall not take place pursuant to this
section until all of the following requirements are satisfied:
(1) At least one gram of a crystalline substance containing
phencyclidine or its analog, 10 milliliters of a liquid substance
containing phencyclidine or its analog, two grams of plant material
containing phencyclidine or its analog, or five hand-rolled
cigarettes treated with phencyclidine or its analog have been taken
as samples from the phencyclidine or analog to be destroyed.
(2) Photographs have been taken which reasonably demonstrate the
total amount of phencyclidine or its analog to be destroyed.
(3) The gross weight of the phencyclidine or its analog has been
determined by actually weighing the phencyclidine or analog.
(b) Subsequent to any destruction of phencyclidine or its analog,
an affidavit shall be filed within 30 days in the court which has
jurisdiction over any pending criminal proceedings pertaining to that
phencyclidine or its analog, reciting the applicable information
required by paragraphs (1), (2), and (3) of subdivision (a), together
with information establishing the location of the phencyclidine or
analog and specifying the date and time of the destruction. In the
event that there are no criminal proceedings pending which pertain to
that phencyclidine or analog, the affidavit may be filed in any
court within the county which would have jurisdiction over a person
against whom these criminal charges might be filed.
11479.2. Notwithstanding the provisions of Sections 11473, 11473.5,
11474, 11479, and 11479.1, at any time after seizure by a law
enforcement agency of a suspected controlled substance, except
marijuana, any amount, as determined by the court, in excess of 57
grams may, by court order, be destroyed by the chief of a law
enforcement agency or a designated subordinate. Destruction shall not
take place pursuant to this section until all of the following
requirements are satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. Those samples shall be in
addition to the 57 grams required above and each sample shall weigh
not less than one gram at the time the sample is collected.
(b) Photographs have been taken which reasonably demonstrate the
total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating such weight after dimensional measurement
of the total suspected controlled substance.
(d) In cases involving controlled substances suspected of
containing cocaine or methamphetamine, an analysis has determined the
qualitative and quantitative nature of the suspected controlled
substance.
(e) The law enforcement agency with custody of the controlled
substance sought to be destroyed has filed a written motion for the
order of destruction in the court which has jurisdiction over any
pending criminal proceeding in which a defendant is charged by
accusatory pleading with a crime specifically involving the suspected
controlled substance sought to be destroyed. The motion shall, by
affidavit of the chief of the law enforcement agency or designated
subordinate, recite the applicable information required by
subdivisions (a), (b), (c), and (d), together with information
establishing the location of the suspected controlled substance and
the title of any pending criminal proceeding as defined in this
subdivision. The motion shall bear proof of service upon all parties
to any pending criminal proceeding. No motion shall be made when a
defendant is without counsel until the defendant has entered his or
her plea to the charges.
(f) The order for destruction shall issue pursuant to this section
upon the motion and affidavit in support of the order, unless within
20 days after application for the order, a defendant has requested,
in writing, a hearing on the motion. Within 10 days after the filing
of that request, or a longer period of time upon good cause shown by
either party, the court shall conduct a hearing on the motion in
which each party to the motion for destruction shall be permitted to
call and examine witnesses. The hearing shall be recorded. Upon
conclusion of the hearing, if the court finds that the defendant
would not be prejudiced by the destruction, it shall grant the motion
and make an order for destruction. In making the order, the court
shall ensure that the representative samples to be retained are of
sufficient quantities to allow for qualitative analyses by both the
prosecution and the defense. Any order for destruction pursuant to
this section shall include the applicable information required by
subdivisions (a), (b), (c), (d), and (e) and the name of the agency
responsible for the destruction. Unless waived, the order shall
provide for a 10-day delay prior to destruction in order to allow
expert analysis of the controlled substance by the defense.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which ordered destruction stating the location of the
retained, suspected controlled substance and specifying the date and
time of destruction.
This section does not apply to seizures involving hazardous
chemicals or controlled substances in mixture or combination with
hazardous chemicals.
11479.5. (a) Notwithstanding Sections 11473 and 11473.5, at any
time after seizure by a law enforcement agency of a suspected
hazardous chemical, the chemical's container, or any item
contaminated with a hazardous substance believed to have been used or
intended to have been used in the unlawful manufacture of controlled
substances, that amount in excess of one fluid ounce if liquid, or
one avoirdupois ounce if solid, of each different type of suspected
hazardous chemical, its container, and any item contaminated with a
hazardous substance may be disposed of without a court order by the
seizing agency. For the purposes of this section, "hazardous chemical"
means any material that is believed by the chief of the law
enforcement agency, or his or her designee, to be toxic,
carcinogenic, explosive, corrosive, or flammable, and that is
believed by the chief of the law enforcement agency, or his or her
designee, to have been used or intended to have been used in the
unlawful manufacture of controlled substances.
(b) Destruction pursuant to this section of suspected hazardous
chemicals or suspected hazardous chemicals and controlled substances
in combination, or the chemical containers and items contaminated
with a hazardous substance, shall not take place until all of the
following requirements are met:
(1) At least a one ounce sample is taken from each different type
of suspected hazardous chemical to be destroyed.
(2) At least a one ounce sample has been taken from each container
of a mixture of a suspected hazardous chemical with a suspected
controlled substance.
(3) Photographs have been taken which reasonably demonstrate the
total amount of suspected controlled substances and suspected
hazardous chemicals to be destroyed.
(4) The gross weight or volume of the suspected hazardous chemical
seized has been determined.
(5) Photographs have been taken of the chemical containers and
items contaminated with a hazardous substance that reasonably
demonstrate their size.
(c) Subsequent to any disposal of a suspected hazardous chemical,
its container, or any item contaminated with a hazardous substance
pursuant to this section, the law enforcement agency involved shall
maintain records concerning the details of its compliance with, and
reciting the applicable information required by paragraphs (1), (2),
(3), (4), and (5) of subdivision (b), together with the information
establishing the location of the suspected hazardous chemical, its
container, and any item contaminated with a hazardous substance, and
specifying the date and time of the disposal.
(d) (1) Subsequent to any destruction of a suspected controlled
substance in combination with a hazardous chemical or any item
contaminated with a hazardous substance pursuant to this section, an
affidavit containing applicable information required by paragraphs
(1), (2), (3), (4), and (5) of subdivision (b) shall be filed within
30 days in the court that issued the search warrant.
(2) If the disposed materials were seized without a warrant, an
affidavit containing applicable information required by paragraphs
(1), (2), (3), (4), and (5) of subdivision (b) shall be filed in the
court that has jurisdiction over any criminal proceedings pertaining
to the suspected controlled substance after the criminal proceedings
are initiated.
(e) A law enforcement agency responsible for the disposal of any
hazardous chemical shall comply with the provisions of Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health and
Safety Code, as well as all applicable state and federal statutes and
regulations.
11480. The Legislature finds that there is a need to encourage
further research into the nature and effects of marijuana and
hallucinogenic drugs and to coordinate research efforts on such
subjects.
There is a Research Advisory Panel which consists of a
representative of the State Department of Health Services, a
representative of the California State Board of Pharmacy, a
representative of the Attorney General, a representative of the
University of California who shall be a pharmacologist, a physician,
or a person holding a doctorate degree in the health sciences, a
representative of a private university in this state who shall be a
pharmacologist, a physician, or a person holding a doctorate degree
in the health sciences, a representative of a statewide professional
medical society in this state who shall be engaged in the private
practice of medicine and shall be experienced in treating controlled
substance dependency, a representative appointed by and serving at
the pleasure of the Governor who shall have experience in drug abuse,
cancer, or controlled substance research and who is either a
registered nurse, licensed pursuant to Chapter 6 (commencing with
Section 2700) of Division 2 of the Business and Professions Code, or
other health professional. The Governor shall annually designate the
private university and the professional medical society represented
on the panel. Members of the panel shall be appointed by the heads of
the entities to be represented, and they shall serve at the pleasure
of the appointing power.
The Research Advisory Panel shall appoint two special members to
the Research Advisory Panel, who shall serve at the pleasure of the
Research Advisory Panel only during the period Article 6 (commencing
with Section 11260) of Chapter 5 remains effective. The additional
members shall be physicians and surgeons, and who are board certified
in oncology, ophthalmology, or psychiatry.
The panel shall annually select a chairman from among its members.
The panel may hold hearings on, and in other ways study, research
projects concerning marijuana or hallucinogenic drugs in this state.
Members of the panel shall serve without compensation, but shall be
reimbursed for any actual and necessary expenses incurred in
connection with the performance of their duties.
The panel may approve research projects, which have been
registered by the Attorney General, into the nature and effects of
marijuana or hallucinogenic drugs, and shall inform the Attorney
General of the head of the approved research projects which are
entitled to receive quantities of marijuana pursuant to Section
11478.
The panel may withdraw approval of a research project at any time,
and when approval is withdrawn shall notify the head of the research
project to return any quantities of marijuana to the Attorney
General.
The panel shall report annually to the Legislature and the
Governor those research projects approved by the panel, the nature of
each research project, and, where available, the conclusions of the
research project.
11481. The Research Advisory Panel may hold hearings on, and in
other ways study, research projects concerning the treatment of abuse
of controlled substances.
The panel may approve research projects, which have been
registered by the Attorney General, concerning the treatment of abuse
of controlled substances and shall inform the chief of such
approval. The panel may withdraw approval of a research project at
any time and when approval is withdrawn shall so notify the chief.
The panel shall, annually and in the manner determined by the
panel, report to the Legislature and the Governor those research
projects approved by the panel, the nature of each research project,
and where available, the conclusions of the research project.
11483. No provision of this division shall be construed to prohibit
the establishment and effective operation of a narcotic treatment
program licensed pursuant to Article 4 (commencing with Section
11885) of Chapter 1 of Part 3 of Division 10.5.
11485. Any peace officer of this state who, incident to a search
under a search warrant issued for a violation of Section 11358 with
respect to which no prosecution of a defendant results, seizes
personal property suspected of being used in the planting,
cultivation, harvesting, drying, processing, or transporting of
marijuana, shall, if the seized personal property is not being held
for evidence or destroyed as contraband, and if the owner of the
property is unknown or has not claimed the property, provide notice
regarding the seizure and manner of reclamation of the property to
any owner or tenant of real property on which the property was
seized. In addition, this notice shall be posted at the location of
seizure and shall be published at least once in a newspaper of
general circulation in the county in which the property was seized.
If, after 90 days following the first publication of the notice, no
owner appears and proves his or her ownership, the seized personal
property shall be deemed to be abandoned and may be disposed of by
sale to the public at public auction as set forth in Article 1
(commencing with Section 2080) of Chapter 4 of Title 6 of Part 4 of
Division 3 of the Civil Code, or may be disposed of by transfer to a
government agency or community service organization. Any profit from
the sale or transfer of the property shall be expended for
investigative services with respect to crimes involving marijuana.
11488. (a) Any peace officer of this state, subsequent to making or
attempting to make an arrest for a violation of Section 11351,
11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11382 of this code, or Section 182 of the Penal Code
insofar as the offense involves manufacture, sale, purchase for the
purpose of sale, possession for sale or offer to manufacture or sell,
or conspiracy to commit one of those offenses, may seize any item
subject to forfeiture under subdivisions (a) to (f), inclusive, of
Section 11470. The peace officer shall also notify the Franchise Tax
Board of a seizure where there is reasonable cause to believe that
the value of the seized property exceeds five thousand dollars
($5,000).
(b) Receipts for property seized pursuant to this section shall be
delivered to any person out of whose possession such property was
seized, in accordance with Section 1412 of the Penal Code. In the
event property seized was not seized out of anyone's possession,
receipt for the property shall be delivered to the individual in
possession of the premises at which the property was seized.
(c) There shall be a presumption affecting the burden of proof
that the person to whom a receipt for property was issued is the
owner thereof. This presumption may, however, be rebutted at the
forfeiture hearing specified in Section 11488.5.
11488.1. Property seized pursuant to Section 11488 may, where
appropriate, be held for evidence. The Attorney General or the
district attorney for the jurisdiction involved shall institute and
maintain the proceedings.
11488.2. Within 15 days after the seizure, if the peace officer
does not hold the property seized pursuant to Section 11488 for
evidence or if the law enforcement agency for which the peace officer
is employed does not refer the matter in writing for the institution
of forfeiture proceedings by the Attorney General or the district
attorney pursuant to Section 11488.1, the officer shall comply with
any notice to withhold issued with respect to the property by the
Franchise Tax Board. If no notice to withhold has been issued with
respect to the property by the Franchise Tax Board, the officer shall
return the property to the individual designated in the receipt
therefor or if the property is a vehicle, boat, or airplane, it shall
be returned to the registered owner.
11488.4. (a) 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 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 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.
(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) 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 that probable
cause exists to believe that the underlying or related criminal
violations have occurred.
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.
(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) 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) 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 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 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.
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 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, 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 property to be distributed
as set forth in Section 11489.
(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. 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.
11488.6. (a) If the court or jury at the forfeiture hearing finds
that the property is forfeitable pursuant to Section 11470, but does
not find that a person having a valid ownership interest, which
includes, but is not limited to, a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
such interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
such person is less than the appraised value of the property, such
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding the amount of the equity, which
shall be deemed to be the difference between the appraised value and
the amount of the lien, mortgage, security interest, or interest
under a conditional sales contract. Upon such payment, the state or
local governmental entity shall relinquish all claims to the
property. If the holder of the interest elects not to make such
payment to the state or local governmental entity, the property shall
be deemed forfeited to the state or local governmental entity and
the ownership certificate shall be forwarded. The appraised value
shall be determined as of the date judgment is entered on a wholesale
basis either by agreement between the legal owner and the
governmental entity involved, or if they cannot agree, then by the
inheritance tax appraiser for the county in which the action is
brought. A person having a valid ownership interest, which includes,
but is not limited to, a valid lien, mortgage, security interest, or
interest under a conditional sales contract shall be paid the
appraised value of his or her interest in accordance with the
provisions of Section 11489.
(b) If the amount due to a person having a valid ownership
interest, which includes, but is not limited to, 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 Department of General Services or by
the local governmental entity which shall provide notice of such
sale by one publication in a newspaper published and circulated in
the city, community, or locality where the sale is to take place.
(c) The proceeds of sale pursuant to subdivision (b) shall be
first distributed in accordance with the provisions of Section 11489.
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 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 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 atto
11469. In order to ensure the proper utilization of the laws
permitting the seizure and forfeiture of property under this chapter,
the Legislature hereby establishes the following guidelines:
(a) Law enforcement is the principal objective of forfeiture.
Potential revenue must not be allowed to jeopardize the effective
investigation and prosecution of criminal offenses, officer safety,
the integrity of ongoing investigations, or the due process rights of
citizens.
(b) No prosecutor's or sworn law enforcement officer's employment
or salary shall be made to depend upon the level of seizures or
forfeitures he or she achieves.
(c) Whenever appropriate, prosecutors should seek criminal
sanctions as to the underlying criminal acts which give rise to the
forfeiture action.
(d) Seizing agencies shall have a manual detailing the statutory
grounds for forfeiture and all applicable policies and procedures.
The manual shall include procedures for prompt notice to
interestholders, the expeditious release of seized property, where
appropriate, and the prompt resolution of claims of innocent
ownership.
(e) Seizing agencies shall implement training for officers
assigned to forfeiture programs, which training should be ongoing.
(f) Seizing agencies shall avoid any appearance of impropriety in
the sale or acquisition of forfeited property.
(g) Seizing agencies shall not put any seized or forfeited
property into service.
(h) Unless otherwise provided by law, forfeiture proceeds shall be
maintained in a separate fund or account subject to appropriate
accounting controls and annual financial audits of all deposits and
expenditures.
(i) Seizing agencies shall ensure that seized property is
protected and its value preserved.
(j) Although civil forfeiture is intended to be remedial by
removing the tools and profits from those engaged in the illicit drug
trade, it can have harsh effects on property owners in some
circumstances. Therefore, law enforcement shall seek to protect the
interests of innocent property owners, guarantee adequate notice and
due process to property owners, and ensure that forfeiture serves the
remedial purpose of the law.
11470. The following are subject to forfeiture:
(a) All controlled substances which have been manufactured,
distributed, dispensed, or acquired in violation of this division.
(b) All raw materials, products, and equipment of any kind which
are used, or intended for use, in manufacturing, compounding,
processing, delivering, importing, or exporting any controlled
substance in violation of this division.
(c) All property except real property or a boat, airplane, or any
vehicle which is used, or intended for use, as a container for
property described in subdivision (a) or (b).
(d) All books, records, and research products and materials,
including formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this division.
(e) The interest of any registered owner of a boat, airplane, or
any vehicle other than an implement of husbandry, as defined in
Section 36000 of the Vehicle Code, which has been used as an
instrument to facilitate the manufacture of, or possession for sale
or sale of 14.25 grams or more of heroin or cocaine base as specified
in paragraph (1) of subdivision (f) of Section 11054, or a substance
containing 14.25 grams or more of heroin or cocaine base as
specified in paragraph (1) of subdivision (f) of Section 11054, or
14.25 grams or more of a substance containing heroin or cocaine base
as specified in paragraph (1) of subdivision (f) of Section 11054, or
28.5 grams or more of Schedule I controlled substances except
marijuana, peyote, or psilocybin; 10 pounds dry weight or more of
marijuana, peyote, or psilocybin; or 28.5 grams or more of cocaine,
as specified in paragraph (6) of subdivision (b) of Section 11055, or
methamphetamine; or a substance containing 28.5 grams or more of
cocaine, as specified in paragraph (6) of subdivision (b) of Section
11055, or methamphetamine; or 57 grams or more of a substance
containing cocaine, as specified in paragraph (6) of subdivision (b)
of Section 11055, or methamphetamine; or 28.5 grams or more of
Schedule II controlled substances. No interest in a vehicle which may
be lawfully driven on the highway with a class C, class M1, or class
M2 license, as prescribed in Section 12804 of the Vehicle Code, may
be forfeited under this subdivision if there is a community property
interest in the vehicle by a person other than the defendant and the
vehicle is the sole class C, class M1, or class M2 vehicle available
to the defendant's immediate family.
(f) All moneys, negotiable instruments, securities, or other
things of value furnished or intended to be furnished by any person
in exchange for a controlled substance, all proceeds traceable to
such an exchange, and all moneys, negotiable instruments, or
securities used or intended to be used to facilitate any violation of
Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5,
11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or
Section 182 of the Penal Code, or a felony violation of Section
11366.8 of this code, insofar as the offense involves manufacture,
sale, possession for sale, offer for sale, or offer to manufacture,
or conspiracy to commit at least one of those offenses, if the
exchange, violation, or other conduct which is the basis for the
forfeiture occurred within five years of the seizure of the property,
or the filing of a petition under this chapter, or the issuance of
an order of forfeiture of the property, whichever comes first.
(g) The real property of any property owner who is convicted of
violating Section 11366, 11366.5, or 11366.6 with respect to that
property. However, property which is used as a family residence or
for other lawful purposes, or which is owned by two or more persons,
one of whom had no knowledge of its unlawful use, shall not be
subject to forfeiture.
(h) Subject to the requirements of Section 11488.5 and except as
further limited by this subdivision to protect innocent parties who
claim a property interest acquired from a defendant, all right,
title, and interest in any personal property described in this
section shall vest in the state upon commission of the act giving
rise to forfeiture under this chapter, if the state or local
governmental entity proves a violation of Section 11351, 11351.5,
11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6,
11380, 11382, or 11383 of this code, or Section 182 of the Penal
Code, or a felony violation of Section 11366.8 of this code, insofar
as the offense involves the manufacture, sale, possession for sale,
offer for sale, offer to manufacture, or conspiracy to commit at
least one of those offenses, in accordance with the burden of proof
set forth in paragraph (1) of subdivision (i) of Section 11488.4 or,
in the case of cash or negotiable instruments in excess of
twenty-five thousand dollars ($25,000), paragraph (4) of subdivision
(i) of Section 11488.4.
The operation of the special vesting rule established by this
subdivision shall be limited to circumstances where its application
will not defeat the claim of any person, including a bona fide
purchaser or encumbrancer who, pursuant to Section 11488.5, 11488.6,
or 11489, claims an interest in the property seized, notwithstanding
that the interest in the property being claimed was acquired from a
defendant whose property interest would otherwise have been subject
to divestment pursuant to this subdivision.
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 prior to the entry of judgment for the recovery of
expenses. However, 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.
11470.2. (a) In lieu of a civil action for the recovery of expenses
as provided in Section 11470.1, the prosecuting attorney in a
criminal proceeding may, upon conviction of the underlying offense,
seek the recovery of all expenses recoverable under Section 11470.1
from:
(1) Any person who manufacturers 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. The trier of fact shall
make an award of expenses, if proven, which shall be enforceable as
any civil judgment. If probation is granted, the court may order
payment of the expenses as a condition of probation. All expenses
recovered pursuant to this section shall be remitted to the law
enforcement agency which incurred them.
(b) The prosecuting attorney may, in conjunction with the criminal
proceeding, file a petition for recovery of expenses with the
superior court of the county in which the defendant has been charged
with the underlying offense. The petition shall allege that the
defendant had manufactured or cultivated a controlled substance in
violation of Division 10 (commencing with Section 11000) of the
Health and Safety Code and that expenses were incurred in seizing,
eradicating, or destroying the controlled substance or its
precursors. The petition shall also state the amount to be assessed.
The prosecuting attorney shall make service of process of a notice of
that petition to the defendant.
(c) The defendant may admit to or deny the petition for recovery
of expenses. If the defendant admits the allegations of the petition,
the court shall rule for the prosecuting attorney and enter a
judgment for recovery of the expenses incurred.
(d) If the defendant denies the petition or declines to admit to
it, the petition shall be heard in the superior court in which the
underlying criminal offense will be tried and shall be promptly heard
following the defendant's conviction on the underlying offense. The
hearing shall be held either before the same jury or before a new
jury in the discretion of the court, unless waived by the consent of
all parties.
(e) At the hearing, the burden of proof as to the amount of
expenses recoverable shall be on the prosecuting attorney and shall
be by a preponderance of the evidence.
(f) 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.
11470.3. (a) Section 11470 shall be applicable to property owned
by, or in the possession of, minors.
(b) The procedures for the forfeiture of property that comes
within Section 11470 shall be applicable to minors.
(c) Notwithstanding the provisions of this chapter, if a petition
has been filed alleging that the minor is a person described in
Section 602 of the Welfare and Institutions Code because of a
violation which is the basis for the seizure and forfeiture of
property under this chapter, any related forfeiture hearing shall be
continued until the adjudication of the petition. The forfeiture
hearing shall not be conducted in juvenile court.
11470.4. The provisions of this chapter apply to any minor who has
been found to be a person described in Section 602 of the Welfare and
Institutions Code because of a violation of Section 11351, 11351.5,
11352, 11355, 11366, 11366.5, 11366.6, 11378.5, 11379, 11379.5,
11379.6, or 11382.
11471. Property 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:
(a) The seizure is incident to an arrest or a search under a
search warrant.
(b) 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.
(c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used
or is intended to be used in violation of this division.
(e) 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.
(f) 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 such records were seized.
11471.5. A peace officer making a seizure pursuant to Section 11471
shall notify the Franchise Tax Board where there is reasonable cause
to believe that the value of the seized property exceeds five
thousand dollars ($5,000).
11472. Controlled substances and any device, contrivance,
instrument, or paraphernalia used for unlawfully using or
administering a controlled substance, which are possessed in
violation of this division, may be seized by any peace officer and in
the aid of such seizure a search warrant may be issued as prescribed
by law.
11473. (a) All seizures under provisions of this chapter, except
seizures of vehicles, boats, or airplanes, as specified in
subdivision (e) of Section 11470, or seizures of moneys, negotiable
instruments, securities, or other things of value as specified in
subdivision (f) of Section 11470, shall, upon conviction of the owner
or defendant, be ordered destroyed by the court in which conviction
was had.
(b) Law enforcement may request of the court that certain
uncontaminated science equipment be relinquished to a school or
school district for science classroom education in lieu of
destruction.
11473.5. (a) All seizures of controlled substances, instruments, or
paraphernalia used for unlawfully using or administering a
controlled substance which are in possession of any city, county, or
state official as found property, or as the result of a case in which
no trial was had or which has been disposed of by way of dismissal
or otherwise than by way of conviction, shall be destroyed by order
of the court, unless the court finds that the controlled substances,
instruments, or paraphernalia were lawfully possessed by the
defendant.
(b) If the court finds that the property was not lawfully
possessed by the defendant, law enforcement may request of the court
that certain uncontaminated instruments or paraphernalia be
relinquished to a school or school district for science classroom
education in lieu of destruction.
11474. A court order for the destruction of controlled substances,
instruments, or paraphernalia pursuant to the provisions of Section
11473 or 11473.5 may be carried out by a police or sheriff's
department, the Department of Justice, the Department of the
California Highway Patrol, or the Department of Alcoholic Beverage
Control. The court order shall specify the agency responsible for the
destruction. Controlled substances, instruments, or paraphernalia
not in the possession of the designated agency at the time the order
of the court is issued shall be delivered to the designated agency
for destruction in compliance with the order.
11475. Controlled substances listed in Schedule I that are
possessed, transferred, sold, or offered for sale in violation of
this division are contraband and shall be seized and summarily
forfeited to the state. Controlled substances listed in Schedule I,
which are seized or come into the possession of the state, the owners
of which are unknown, are contraband and shall be summarily
forfeited to the state.
11476. Species of plants from which controlled substances in
Schedules I and II may be derived which have been planted or
cultivated in violation of this division, or of which the owners or
cultivators are unknown, or which are wild growths, may be seized and
summarily forfeited to the state.
11477. The failure, upon demand by a peace officer of the person in
occupancy or in control of land or premises upon which the species
of plants are growing or being stored, to produce an appropriate
registration, or proof that he is the holder thereof, constitutes
authority for the seizure and forfeiture of the plants.
11478. Marijuana may be provided by the Attorney General to the
heads of research projects which have been registered by the Attorney
General, and which have been approved by the research advisory panel
pursuant to Section 11480.
The head of the approved research project shall personally receipt
for such quantities of marijuana and shall make a record of their
disposition. The receipt and record shall be retained by the Attorney
General. The head of the approved research project shall also, at
intervals and in the manner required by the research advisory panel,
report the progress or conclusions of the research project.
11479. Notwithstanding Sections 11473 and 11473.5, at any time
after seizure by a law enforcement agency of a suspected controlled
substance, that amount in excess of 10 pounds in gross weight may be
destroyed without a court order by the chief of the law enforcement
agency or a designated subordinate. Destruction shall not take place
pursuant to this section until all of the following requirements are
satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. These samples shall be in
addition to the 10 pounds required above. When the suspected
controlled substance consists of growing or harvested marijuana
plants, at least one 10 pound sample (which may include stalks,
branches, or leaves) and five representative samples consisting of
leaves or buds shall be retained for evidentiary purposes from the
total amount of suspected controlled substances to be destroyed.
(b) Photographs have been taken which reasonably demonstrate the
total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating that weight after dimensional measurement
of the total suspected controlled substance.
(d) The chief of the law enforcement agency has determined that it
is not reasonably possible to preserve the suspected controlled
substance in place, or to remove the suspected controlled substance
to another location. In making this determination, the difficulty of
transporting and storing the suspected controlled substance to
another site and the storage facilities may be taken into
consideration.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which has jurisdiction over any pending criminal
proceedings pertaining to that suspected controlled substance,
reciting the applicable information required by subdivisions (a),
(b), (c), and (d) together with information establishing the location
of the suspected controlled substance, and specifying the date and
time of the destruction. In the event that there are no criminal
proceedings pending which pertain to that suspected controlled
substance, the affidavit may be filed in any court within the county
which would have jurisdiction over a person against whom those
criminal charges might be filed.
11479.1. (a) Notwithstanding the provisions of Sections 11473,
11473.5, and 11479, at any time after seizure by a law enforcement
agency and identification by a forensic chemist or criminalist of
phencyclidine, or an analog thereof, that amount in excess of one
gram of a crystalline substance containing phencyclidine or its
analog, 10 milliliters of a liquid substance containing phencyclidine
or its analog, two grams of plant material containing phencyclidine
or its analog, or five hand-rolled cigarettes treated with
phencyclidine or its analog, may be destroyed without a court order
by the chief of the law enforcement agency or a designated
subordinate. Destruction shall not take place pursuant to this
section until all of the following requirements are satisfied:
(1) At least one gram of a crystalline substance containing
phencyclidine or its analog, 10 milliliters of a liquid substance
containing phencyclidine or its analog, two grams of plant material
containing phencyclidine or its analog, or five hand-rolled
cigarettes treated with phencyclidine or its analog have been taken
as samples from the phencyclidine or analog to be destroyed.
(2) Photographs have been taken which reasonably demonstrate the
total amount of phencyclidine or its analog to be destroyed.
(3) The gross weight of the phencyclidine or its analog has been
determined by actually weighing the phencyclidine or analog.
(b) Subsequent to any destruction of phencyclidine or its analog,
an affidavit shall be filed within 30 days in the court which has
jurisdiction over any pending criminal proceedings pertaining to that
phencyclidine or its analog, reciting the applicable information
required by paragraphs (1), (2), and (3) of subdivision (a), together
with information establishing the location of the phencyclidine or
analog and specifying the date and time of the destruction. In the
event that there are no criminal proceedings pending which pertain to
that phencyclidine or analog, the affidavit may be filed in any
court within the county which would have jurisdiction over a person
against whom these criminal charges might be filed.
11479.2. Notwithstanding the provisions of Sections 11473, 11473.5,
11474, 11479, and 11479.1, at any time after seizure by a law
enforcement agency of a suspected controlled substance, except
marijuana, any amount, as determined by the court, in excess of 57
grams may, by court order, be destroyed by the chief of a law
enforcement agency or a designated subordinate. Destruction shall not
take place pursuant to this section until all of the following
requirements are satisfied:
(a) At least five random and representative samples have been
taken, for evidentiary purposes, from the total amount of suspected
controlled substances to be destroyed. Those samples shall be in
addition to the 57 grams required above and each sample shall weigh
not less than one gram at the time the sample is collected.
(b) Photographs have been taken which reasonably demonstrate the
total amount of the suspected controlled substance to be destroyed.
(c) The gross weight of the suspected controlled substance has
been determined, either by actually weighing the suspected controlled
substance or by estimating such weight after dimensional measurement
of the total suspected controlled substance.
(d) In cases involving controlled substances suspected of
containing cocaine or methamphetamine, an analysis has determined the
qualitative and quantitative nature of the suspected controlled
substance.
(e) The law enforcement agency with custody of the controlled
substance sought to be destroyed has filed a written motion for the
order of destruction in the court which has jurisdiction over any
pending criminal proceeding in which a defendant is charged by
accusatory pleading with a crime specifically involving the suspected
controlled substance sought to be destroyed. The motion shall, by
affidavit of the chief of the law enforcement agency or designated
subordinate, recite the applicable information required by
subdivisions (a), (b), (c), and (d), together with information
establishing the location of the suspected controlled substance and
the title of any pending criminal proceeding as defined in this
subdivision. The motion shall bear proof of service upon all parties
to any pending criminal proceeding. No motion shall be made when a
defendant is without counsel until the defendant has entered his or
her plea to the charges.
(f) The order for destruction shall issue pursuant to this section
upon the motion and affidavit in support of the order, unless within
20 days after application for the order, a defendant has requested,
in writing, a hearing on the motion. Within 10 days after the filing
of that request, or a longer period of time upon good cause shown by
either party, the court shall conduct a hearing on the motion in
which each party to the motion for destruction shall be permitted to
call and examine witnesses. The hearing shall be recorded. Upon
conclusion of the hearing, if the court finds that the defendant
would not be prejudiced by the destruction, it shall grant the motion
and make an order for destruction. In making the order, the court
shall ensure that the representative samples to be retained are of
sufficient quantities to allow for qualitative analyses by both the
prosecution and the defense. Any order for destruction pursuant to
this section shall include the applicable information required by
subdivisions (a), (b), (c), (d), and (e) and the name of the agency
responsible for the destruction. Unless waived, the order shall
provide for a 10-day delay prior to destruction in order to allow
expert analysis of the controlled substance by the defense.
Subsequent to any destruction of a suspected controlled substance
pursuant to this section, an affidavit shall be filed within 30 days
in the court which ordered destruction stating the location of the
retained, suspected controlled substance and specifying the date and
time of destruction.
This section does not apply to seizures involving hazardous
chemicals or controlled substances in mixture or combination with
hazardous chemicals.
11479.5. (a) Notwithstanding Sections 11473 and 11473.5, at any
time after seizure by a law enforcement agency of a suspected
hazardous chemical, the chemical's container, or any item
contaminated with a hazardous substance believed to have been used or
intended to have been used in the unlawful manufacture of controlled
substances, that amount in excess of one fluid ounce if liquid, or
one avoirdupois ounce if solid, of each different type of suspected
hazardous chemical, its container, and any item contaminated with a
hazardous substance may be disposed of without a court order by the
seizing agency. For the purposes of this section, "hazardous chemical"
means any material that is believed by the chief of the law
enforcement agency, or his or her designee, to be toxic,
carcinogenic, explosive, corrosive, or flammable, and that is
believed by the chief of the law enforcement agency, or his or her
designee, to have been used or intended to have been used in the
unlawful manufacture of controlled substances.
(b) Destruction pursuant to this section of suspected hazardous
chemicals or suspected hazardous chemicals and controlled substances
in combination, or the chemical containers and items contaminated
with a hazardous substance, shall not take place until all of the
following requirements are met:
(1) At least a one ounce sample is taken from each different type
of suspected hazardous chemical to be destroyed.
(2) At least a one ounce sample has been taken from each container
of a mixture of a suspected hazardous chemical with a suspected
controlled substance.
(3) Photographs have been taken which reasonably demonstrate the
total amount of suspected controlled substances and suspected
hazardous chemicals to be destroyed.
(4) The gross weight or volume of the suspected hazardous chemical
seized has been determined.
(5) Photographs have been taken of the chemical containers and
items contaminated with a hazardous substance that reasonably
demonstrate their size.
(c) Subsequent to any disposal of a suspected hazardous chemical,
its container, or any item contaminated with a hazardous substance
pursuant to this section, the law enforcement agency involved shall
maintain records concerning the details of its compliance with, and
reciting the applicable information required by paragraphs (1), (2),
(3), (4), and (5) of subdivision (b), together with the information
establishing the location of the suspected hazardous chemical, its
container, and any item contaminated with a hazardous substance, and
specifying the date and time of the disposal.
(d) (1) Subsequent to any destruction of a suspected controlled
substance in combination with a hazardous chemical or any item
contaminated with a hazardous substance pursuant to this section, an
affidavit containing applicable information required by paragraphs
(1), (2), (3), (4), and (5) of subdivision (b) shall be filed within
30 days in the court that issued the search warrant.
(2) If the disposed materials were seized without a warrant, an
affidavit containing applicable information required by paragraphs
(1), (2), (3), (4), and (5) of subdivision (b) shall be filed in the
court that has jurisdiction over any criminal proceedings pertaining
to the suspected controlled substance after the criminal proceedings
are initiated.
(e) A law enforcement agency responsible for the disposal of any
hazardous chemical shall comply with the provisions of Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health and
Safety Code, as well as all applicable state and federal statutes and
regulations.
11480. The Legislature finds that there is a need to encourage
further research into the nature and effects of marijuana and
hallucinogenic drugs and to coordinate research efforts on such
subjects.
There is a Research Advisory Panel which consists of a
representative of the State Department of Health Services, a
representative of the California State Board of Pharmacy, a
representative of the Attorney General, a representative of the
University of California who shall be a pharmacologist, a physician,
or a person holding a doctorate degree in the health sciences, a
representative of a private university in this state who shall be a
pharmacologist, a physician, or a person holding a doctorate degree
in the health sciences, a representative of a statewide professional
medical society in this state who shall be engaged in the private
practice of medicine and shall be experienced in treating controlled
substance dependency, a representative appointed by and serving at
the pleasure of the Governor who shall have experience in drug abuse,
cancer, or controlled substance research and who is either a
registered nurse, licensed pursuant to Chapter 6 (commencing with
Section 2700) of Division 2 of the Business and Professions Code, or
other health professional. The Governor shall annually designate the
private university and the professional medical society represented
on the panel. Members of the panel shall be appointed by the heads of
the entities to be represented, and they shall serve at the pleasure
of the appointing power.
The Research Advisory Panel shall appoint two special members to
the Research Advisory Panel, who shall serve at the pleasure of the
Research Advisory Panel only during the period Article 6 (commencing
with Section 11260) of Chapter 5 remains effective. The additional
members shall be physicians and surgeons, and who are board certified
in oncology, ophthalmology, or psychiatry.
The panel shall annually select a chairman from among its members.
The panel may hold hearings on, and in other ways study, research
projects concerning marijuana or hallucinogenic drugs in this state.
Members of the panel shall serve without compensation, but shall be
reimbursed for any actual and necessary expenses incurred in
connection with the performance of their duties.
The panel may approve research projects, which have been
registered by the Attorney General, into the nature and effects of
marijuana or hallucinogenic drugs, and shall inform the Attorney
General of the head of the approved research projects which are
entitled to receive quantities of marijuana pursuant to Section
11478.
The panel may withdraw approval of a research project at any time,
and when approval is withdrawn shall notify the head of the research
project to return any quantities of marijuana to the Attorney
General.
The panel shall report annually to the Legislature and the
Governor those research projects approved by the panel, the nature of
each research project, and, where available, the conclusions of the
research project.
11481. The Research Advisory Panel may hold hearings on, and in
other ways study, research projects concerning the treatment of abuse
of controlled substances.
The panel may approve research projects, which have been
registered by the Attorney General, concerning the treatment of abuse
of controlled substances and shall inform the chief of such
approval. The panel may withdraw approval of a research project at
any time and when approval is withdrawn shall so notify the chief.
The panel shall, annually and in the manner determined by the
panel, report to the Legislature and the Governor those research
projects approved by the panel, the nature of each research project,
and where available, the conclusions of the research project.
11483. No provision of this division shall be construed to prohibit
the establishment and effective operation of a narcotic treatment
program licensed pursuant to Article 4 (commencing with Section
11885) of Chapter 1 of Part 3 of Division 10.5.
11485. Any peace officer of this state who, incident to a search
under a search warrant issued for a violation of Section 11358 with
respect to which no prosecution of a defendant results, seizes
personal property suspected of being used in the planting,
cultivation, harvesting, drying, processing, or transporting of
marijuana, shall, if the seized personal property is not being held
for evidence or destroyed as contraband, and if the owner of the
property is unknown or has not claimed the property, provide notice
regarding the seizure and manner of reclamation of the property to
any owner or tenant of real property on which the property was
seized. In addition, this notice shall be posted at the location of
seizure and shall be published at least once in a newspaper of
general circulation in the county in which the property was seized.
If, after 90 days following the first publication of the notice, no
owner appears and proves his or her ownership, the seized personal
property shall be deemed to be abandoned and may be disposed of by
sale to the public at public auction as set forth in Article 1
(commencing with Section 2080) of Chapter 4 of Title 6 of Part 4 of
Division 3 of the Civil Code, or may be disposed of by transfer to a
government agency or community service organization. Any profit from
the sale or transfer of the property shall be expended for
investigative services with respect to crimes involving marijuana.
11488. (a) Any peace officer of this state, subsequent to making or
attempting to make an arrest for a violation of Section 11351,
11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5,
11379.6, or 11382 of this code, or Section 182 of the Penal Code
insofar as the offense involves manufacture, sale, purchase for the
purpose of sale, possession for sale or offer to manufacture or sell,
or conspiracy to commit one of those offenses, may seize any item
subject to forfeiture under subdivisions (a) to (f), inclusive, of
Section 11470. The peace officer shall also notify the Franchise Tax
Board of a seizure where there is reasonable cause to believe that
the value of the seized property exceeds five thousand dollars
($5,000).
(b) Receipts for property seized pursuant to this section shall be
delivered to any person out of whose possession such property was
seized, in accordance with Section 1412 of the Penal Code. In the
event property seized was not seized out of anyone's possession,
receipt for the property shall be delivered to the individual in
possession of the premises at which the property was seized.
(c) There shall be a presumption affecting the burden of proof
that the person to whom a receipt for property was issued is the
owner thereof. This presumption may, however, be rebutted at the
forfeiture hearing specified in Section 11488.5.
11488.1. Property seized pursuant to Section 11488 may, where
appropriate, be held for evidence. The Attorney General or the
district attorney for the jurisdiction involved shall institute and
maintain the proceedings.
11488.2. Within 15 days after the seizure, if the peace officer
does not hold the property seized pursuant to Section 11488 for
evidence or if the law enforcement agency for which the peace officer
is employed does not refer the matter in writing for the institution
of forfeiture proceedings by the Attorney General or the district
attorney pursuant to Section 11488.1, the officer shall comply with
any notice to withhold issued with respect to the property by the
Franchise Tax Board. If no notice to withhold has been issued with
respect to the property by the Franchise Tax Board, the officer shall
return the property to the individual designated in the receipt
therefor or if the property is a vehicle, boat, or airplane, it shall
be returned to the registered owner.
11488.4. (a) 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 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 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.
(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) 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 that probable
cause exists to believe that the underlying or related criminal
violations have occurred.
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.
(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) 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) 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 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 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.
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 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, 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 property to be distributed
as set forth in Section 11489.
(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. 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.
11488.6. (a) If the court or jury at the forfeiture hearing finds
that the property is forfeitable pursuant to Section 11470, but does
not find that a person having a valid ownership interest, which
includes, but is not limited to, a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
such interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
such person is less than the appraised value of the property, such
person may pay to the state or the local governmental entity which
initiated the forfeiture proceeding the amount of the equity, which
shall be deemed to be the difference between the appraised value and
the amount of the lien, mortgage, security interest, or interest
under a conditional sales contract. Upon such payment, the state or
local governmental entity shall relinquish all claims to the
property. If the holder of the interest elects not to make such
payment to the state or local governmental entity, the property shall
be deemed forfeited to the state or local governmental entity and
the ownership certificate shall be forwarded. The appraised value
shall be determined as of the date judgment is entered on a wholesale
basis either by agreement between the legal owner and the
governmental entity involved, or if they cannot agree, then by the
inheritance tax appraiser for the county in which the action is
brought. A person having a valid ownership interest, which includes,
but is not limited to, a valid lien, mortgage, security interest, or
interest under a conditional sales contract shall be paid the
appraised value of his or her interest in accordance with the
provisions of Section 11489.
(b) If the amount due to a person having a valid ownership
interest, which includes, but is not limited to, 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 Department of General Services or by
the local governmental entity which shall provide notice of such
sale by one publication in a newspaper published and circulated in
the city, community, or locality where the sale is to take place.
(c) The proceeds of sale pursuant to subdivision (b) shall be
first distributed in accordance with the provisions of Section 11489.
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 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 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 atto
