(a) (1) Any person who commits two or more related
felonies, a material element of which is fraud or embezzlement, which
involve a pattern of related felony conduct, and the pattern of
related felony conduct involves the taking of, or results in the loss
by another person or entity of, more than one hundred thousand
dollars ($100,000), shall be punished, upon conviction of two or more
felonies in a single criminal proceeding, in addition and
consecutive to the punishment prescribed for the felony offenses of
which he or she has been convicted, by an additional term of
imprisonment in the state prison as specified in paragraph (2) or
(3). This enhancement shall be known as the aggravated white collar
crime enhancement. The aggravated white collar crime enhancement
shall only be imposed once in a single criminal proceeding. For
purposes of this section, "pattern of related felony conduct" means
engaging in at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of commission, or
are otherwise interrelated by distinguishing characteristics, and
that are not isolated events. For purposes of this section, "two or
more related felonies" means felonies committed against two or more
separate victims, or against the same victim on two or more separate
occasions.
(2) If the pattern of related felony conduct involves the taking
of, or results in the loss by another person or entity of, more than
five hundred thousand dollars ($500,000), the additional term of
punishment shall be two, three, or five years in the state prison.
(3) If the pattern of related felony conduct involves the taking
of, or results in the loss by another person or entity of, more than
one hundred thousand dollars ($100,000), but not more than five
hundred thousand dollars ($500,000), the additional term of
punishment shall be the term specified in paragraph (1) or (2) of
subdivision (a) of Section 12022.6.
(b) (1) The additional prison term and penalties provided for in
subdivisions (a), (c), and (d) shall not be imposed unless the facts
set forth in subdivision (a) are charged in the accusatory pleading
and admitted or found to be true by the trier of fact.
(2) The additional prison term provided in paragraph (2) of
subdivision (a) shall be in addition to any other punishment provided
by law, including Section 12022.6, and shall not be limited by any
other provision of law.
(c) Any person convicted of two or more felonies, as specified in
subdivision (a), shall also be liable for a fine not to exceed five
hundred thousand dollars ($500,000) or double the value of the
taking, whichever is greater, if the existence of facts that would
make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact. However, if the pattern of related felony conduct involves the
taking of more than one hundred thousand dollars ($100,000), but not
more than five hundred thousand dollars ($500,000), the fine shall
not exceed one hundred thousand dollars ($100,000) or double the
value of the taking, whichever is greater.
(d) (1) If a person is alleged to have committed two or more
felonies, as specified in subdivision (a), and the aggravated white
collar crime enhancement is also charged, or a person is charged in
an accusatory pleading with a felony, a material element of which is
fraud or embezzlement, that involves the taking or loss of more than
one hundred thousand dollars ($100,000), and an allegation as to the
existence of those facts, any asset or property that is in the
control of that person, and any asset or property that has been
transferred by that person to a third party, subsequent to the
commission of any criminal act alleged pursuant to subdivision (a),
other than in a bona fide purchase, whether found within or outside
the state, may be preserved by the superior court in order to pay
restitution and fines. Upon conviction of two or more felonies, as
specified in subdivision (a), or a felony, a material element of
which is fraud or embezzlement, that involves the taking or loss of
more than one hundred thousand dollars ($100,000), this property may
be levied upon by the superior court to pay restitution and fines if
the existence of facts that would make the person subject to the
aggravated white collar crime enhancement or that demonstrate the
taking or loss of more than one hundred thousand dollars ($100,000)
in the commission of a felony, a material element of which is fraud
or embezzlement, have been charged in the accusatory pleading and
admitted or found to be true by the trier of fact.
(2) To prevent dissipation or secreting of assets or property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging two or more felonies, as
specified in subdivision (a), and the enhancement specified in
subdivision (a), or a felony, a material element of which is fraud or
embezzlement, that involves the taking or loss of more than one
hundred thousand dollars ($100,000), and an allegation as to the
existence of those facts, file a petition with the criminal division
of the superior court of the county in which the accusatory pleading
was filed, seeking a temporary restraining order, preliminary
injunction, the appointment of a receiver, or any other protective
relief necessary to preserve the property or assets. This petition
shall commence a proceeding that shall be pendent to the criminal
proceeding and maintained solely to affect the criminal remedies
provided for in this section. The proceeding shall not be subject to
or governed by the provisions of the Civil Discovery Act as set forth
in Title 4 (commencing with Section 2016.010) of Part 4 of the Code
of Civil Procedure. The petition shall allege that the defendant has
been charged with two or more felonies, as specified in subdivision
(a), and is subject to the aggravated white collar crime enhancement
specified in subdivision (a) or that the defendant has been charged
with a felony, a material element of which is fraud or embezzlement,
that involves the taking or loss of more than one hundred thousand
dollars ($100,000), and an allegation as to the existence of those
facts. The petition shall identify that criminal proceeding and the
assets and property to be affected by an order issued pursuant to
this section.
(3) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(4) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(5) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(6) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property or assets. A verified copy of
the claim shall be served by the claimant on the Attorney General or
district attorney, as appropriate.
(7) The imposition of fines and restitution pursuant to this
section shall be determined by the superior court in which the
underlying criminal offense is sentenced. Any judge who is assigned
to the criminal division of the superior court in the county where
the petition is filed may issue a temporary restraining order in
conjunction with, or subsequent to, the filing of an allegation
pursuant to this section. Any subsequent hearing on the petition
shall also be heard by a judge assigned to the criminal division of
the superior court in the county in which the petition is filed. At
the time of the filing of an information or indictment in the
underlying criminal case, any subsequent hearing on the petition
shall be heard by the superior court judge assigned to the underlying
criminal case.
(e) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
or assets that are subject to the provisions of this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution and fines
imposed pursuant to this section.
(f) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (3) of subdivision (d) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that aggravated white collar crime or a felony, a
material element of which is fraud or embezzlement, that involves the
taking or loss of more than one hundred thousand dollars ($100,000)
has taken place and that the amount of restitution and fines exceeds
or equals the worth of the assets subject to the temporary
restraining order. The declaration may include the hearsay statements
of witnesses to establish the necessary facts. The temporary
restraining order may be issued without notice upon a showing of good
cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (6) of subdivision (d), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (4) of subdivision (d), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs the
potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of fraud and
moral turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of white collar crimes.
(D) The likelihood that substantial public harm has occurred where
aggravated white collar crime is alleged to have been committed.
(E) The significant public interest involved in compensating the
victims of white collar crime and paying court-imposed restitution
and fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (e), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
asset subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(g) If the allegation that the defendant is subject to the
aggravated white collar crime enhancement or has committed a felony,
a material element of which is fraud or embezzlement, that involves
the taking or loss of more than one hundred thousand dollars
($100,000) is dismissed or found by the trier of fact to be untrue,
any preliminary injunction or temporary restraining order issued
pursuant to this section shall be dissolved. If a jury is the trier
of fact, and the jury is unable to reach a unanimous verdict, the
court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(h) (1) (A) If the defendant is convicted of two or more felonies,
as specified in subdivision (a), and the existence of facts that
would make the person subject to the aggravated white collar crime
enhancement have been admitted or found to be true by the trier of
fact, or the defendant is convicted of a felony, a material element
of which is fraud or embezzlement, that involves the taking or loss
of more than one hundred thousand dollars ($100,000), and an
allegation as to the existence of those facts has been admitted or
found to be true by the trier of fact, the trial judge shall continue
the preliminary injunction or temporary restraining order until the
date of the criminal sentencing and shall make a finding at that time
as to what portion, if any, of the property or assets subject to the
preliminary injunction or temporary restraining order shall be
levied upon to pay fines and restitution to victims of the crime. The
order imposing fines and restitution may exceed the total worth of
the property or assets subjected to the preliminary injunction or
temporary restraining order. The court may order the immediate
transfer of the property or assets to satisfy any judgment and
sentence made pursuant to this section. Additionally, upon motion of
the prosecution, the court may enter an order as part of the judgment
and sentence making the order imposing fines and restitution
pursuant to this section enforceable pursuant to Title 9 (commencing
with Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (b) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court if the existence of facts that would make the
defendant subject to the aggravated white collar crime enhancement or
of facts demonstrating the person committed a felony, a material
element of which is fraud or embezzlement, that involves the taking
or loss of more than one hundred thousand dollars ($100,000) have
been admitted or found to be true by the trier of fact.
Notwithstanding any other provision of law, the court may order that
the period of probation continue for up to 10 years or until full
restitution is made to the victim, whichever is earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional fines and restitution and, in appropriate
cases, may initiate probation violation proceedings or contempt of
court proceedings against a defendant who is found to have willfully
failed to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing fines and restitution shall not affect the
interest in real property of any third party that was acquired prior
to the recording of the lis pendens, unless the property was obtained
from the defendant other than as a bona fide purchaser for value. If
any assets or property affected by this section are subject to a
valid lien, mortgage, security interest, or interest under a
conditional sales contract and the amount due to the holder of the
lien, mortgage, interest, or contract is less than the appraised
value of the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(i) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property or assets which shall be distributed in the
following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale of the property or liquidation of assets, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(4) For payment of any fine imposed pursuant to this section. The
proceeds obtained in payment of a fine shall be paid to the treasurer
of the county in which the judgment was entered, or if the action
was undertaken by the Attorney General, to the Treasurer. If the
payment of any fine imposed pursuant to this section involved losses
resulting from violation of Section 550 of this code or Section
1871.4 of the Insurance Code, one-half of the fine collected shall be
paid to the treasurer of the county in which the judgment was
entered, and one-half of the fine collected shall be paid to the
Department of Insurance for deposit in the appropriate account in the
Insurance Fund. The proceeds from the fine first shall be used by a
county to reimburse local prosecutors and enforcement agencies for
the reasonable costs of investigation and prosecution of cases
brought pursuant to this section.
(5) To the Restitution Fund, or in cases involving convictions
relating to insurance fraud, to the Insurance Fund as restitution for
crimes not specifically pleaded and proven in the accusatory
pleading.
(j) If, after distribution pursuant to paragraphs (1) and (2) of
subdivision (i), the value of the property to be levied upon pursuant
to this section is insufficient to pay for restitution and fines,
the court shall order an equitable sharing of the proceeds of the
liquidation of the property, and any other recoveries, which shall
specify the percentage of recoveries to be devoted to each purpose.
At least 70 percent of the proceeds remaining after distribution
pursuant to paragraphs (1) and (2) of subdivision (i) shall be
devoted to restitution.
(k) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code. If a fine is imposed
under this section, it shall be in lieu of all other fines that may
be imposed pursuant to any other provision of law for the crimes for
which the defendant has been convicted in the action.
(a) (1) A felony for purposes of this section means a
felony violation of subdivision (d) or (e) of Section 368, or a
felony violation of subdivision (c) of Section 15656 of the Welfare
and Institutions Code, that involves the taking or loss of more than
one hundred thousand dollars ($100,000).
(2) If a person is charged with a felony as described in paragraph
(1) and an allegation as to the existence of those facts has been
made, any property that is in the control of that person, and any
property that has been transferred by that person to a third party,
subsequent to the commission of any criminal act alleged pursuant to
this subdivision, other than in a bona fide purchase, whether found
within or outside the state, may be preserved by the superior court
in order to pay restitution imposed pursuant to this section. Upon
conviction of the felony, this property may be levied upon by the
superior court to pay restitution imposed pursuant to this section.
(b) (1) To prevent dissipation or secreting of property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging a felony subject to this
section, file a petition with the criminal division of the superior
court of the county in which the accusatory pleading was filed,
seeking a temporary restraining order, preliminary injunction, the
appointment of a receiver, or any other protective relief necessary
to preserve the property. The filing of the petition shall commence a
proceeding that shall be pendent to the criminal proceeding and
maintained solely to affect the criminal remedies provided for in
this section. The proceeding shall not be subject to or governed by
the provisions of the Civil Discovery Act as set forth in Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. The petition shall allege that the defendant has been
charged with a felony as described in paragraph (1) of subdivision
(a) and shall identify that criminal proceeding and the property to
be affected by an order issued pursuant to this section.
(2) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(3) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(4) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(5) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, or within 30 days after receipt of
actual notice, file with the superior court of the county in which
the action is pending a verified claim stating the nature and amount
of his or her interest in the property. A verified copy of the claim
shall be served by the claimant on the Attorney General or district
attorney, as appropriate.
(6) The imposition of restitution pursuant to this section shall
be determined by the superior court in which the underlying criminal
offense is sentenced. Any judge who is assigned to the criminal
division of the superior court in the county where the petition is
filed may issue a temporary restraining order in conjunction with, or
subsequent to, the filing of an allegation pursuant to this section.
Any subsequent hearing on the petition shall also be heard by a
judge assigned to the criminal division of the superior court in the
county in which the petition is filed. At the time of the filing of
an information or indictment in the underlying criminal case, any
subsequent hearing on the petition shall be heard by the superior
court judge assigned to the underlying criminal case.
(c) Concurrent with or subsequent to the filing of the petition
pursuant to this section, the prosecuting agency may move the
superior court for, and the superior court may issue, the following
pendente lite orders to preserve the status quo of the property
identified in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the properties so that the property may be
maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
that is subject to this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution imposed
pursuant to this section.
(d) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (2) of subdivision (b) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that a felony has taken place and that the amount of
restitution established by this section exceeds or equals the worth
of the property subject to the temporary restraining order. The
declaration may include the hearsay statements of witnesses to
establish the necessary facts. The temporary restraining order may be
issued without notice upon a showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (5) of subdivision (b), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (3) of subdivision (b), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of dissipation of the property outweighs
the potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property pendente lite.
(B) The difficulty of preserving the property pendente lite where
the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of elder or dependent adult
financial abuse.
(D) The likelihood that substantial public harm has occurred where
a felony is alleged to have been committed.
(E) The significant public interest involved in compensating the
elder or dependent adult victim of financial abuse and paying
court-imposed restitution.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section shall be part of
the criminal proceedings for purposes of appointment of counsel and
shall be assigned to the criminal division of the superior court of
the county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (c), the court may order an
interlocutory sale of property identified in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
property subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(e) If the allegation that the defendant committed a felony
subject to this section is dismissed or found by the trier of fact to
be untrue, any preliminary injunction or temporary restraining order
issued pursuant to this section shall be dissolved. If a jury is the
trier of fact, and the jury is unable to reach a unanimous verdict,
the court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(f) (1) (A) If the defendant is convicted of a felony subject to
this section, the trial judge shall continue the preliminary
injunction or temporary restraining order until the date of the
criminal sentencing and shall make a finding at that time as to what
portion, if any, of the property subject to the preliminary
injunction or temporary restraining order shall be levied upon to pay
restitution to victims of the crime. The order imposing restitution
may exceed the total worth of the property subjected to the
preliminary injunction or temporary restraining order. The court may
order the immediate transfer of the property to satisfy any judgment
and sentence made pursuant to this section. Additionally, upon motion
of the prosecution, the court may enter an order as part of the
judgment and sentence making the order imposing restitution pursuant
to this section enforceable pursuant to Title 9 (commencing with
Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (b) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court. Notwithstanding any other provision of law, the
court may order that the period of probation continue for up to 10
years or until full restitution is made to the victim, whichever is
earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional restitution and, in appropriate cases, may
initiate probation violation proceedings or contempt of court
proceedings against a defendant who is found to have willfully failed
to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing restitution shall not affect the interest
in real property of any third party that was acquired prior to the
recording of the lis pendens, unless the property was obtained from
the defendant other than as a bona fide purchaser for value. If any
assets or property affected by this section are subject to a valid
lien, mortgage, security interest, or interest under a conditional
sales contract and the amount due to the holder of the lien,
mortgage, interest, or contract is less than the appraised value of
the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(g) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property, the proceeds of which shall be distributed
in the following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale or liquidation of the property, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(h) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code.