California Rapid Alert Narcotics Enforcement Agency
California Narcotics Forfeiture Laws

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.

 

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