Health and Safety Code, Section 11469-11475 *
§ 1.
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.
§ 2.
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.
§ 2.1.
(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.§ 2.2.
(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.
§ 2.3.
(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.§ 2.4.
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.§ 3.
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.§ 3.1.
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).§ 4.
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.
§ 5.
(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.§ 5.1.
(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.§ 6.
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.
§ 7.
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.
Note: To improve readability, section numbers 11469-11475 from the California Health and Safety Code were renumbered 1-7, respectively, in this text.