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.