California's Asset Forfeiture Laws
Explained by Our Criminal Defense Lawyers

Asset forfeiture is one of the most powerful - and potentially unfair - weapons the government can use against people, regardless of whether they are guilty of a crime.

Asset forfeiture occurs when the government takes away someone's private property, without compensating them, because it suspects the property was used in committing a crime or was obtained through criminal activity. California's asset forfeiture laws allow cops and prosecutors to seize most types of property--including land, houses, boats, cars, money, etc.

In technical legal terms, an asset forfeiture proceeding is a lawsuit by the government against the property, not against its owners.1 What this means in practice is that it does not matter whether the owner of the property is found guilty or has committed a crime at all--they can still lose their property to asset forfeiture.2

To illustrate the harshness of this rule: the United States Supreme Court has held that it is okay for the government to seize a car jointly owned by a husband and wife because the husband had sex with a prostitute in the car ... even though the wife had no idea he was using it for that purpose!3

In California, asset forfeiture most often takes place in connection with drug offenses, under the California Uniform Controlled Substances Act, Health & Safety Code Section 11000 et seq HS.

Another major route to asset forfeiture in California is through the Control of Profits of Organized Crime Act, Penal Code 186.1 PC et seq.

In this article, our California criminal defense and asset forfeiture attorneys4 explain asset forfeiture in California by addressing the following:

1. Overview of California asset forfeiture

1.1. Asset forfeiture overview

1.2. Potential for abuse

1.3. Examples of property subject to asset forfeiture
in California

2. Asset forfeiture under California's drug laws

21. Kinds of property that may be forfeited

2.2. Conviction requirement and exceptions

2.2.1. Conviction requirement

2.2.2. Situations where conviction is
not required

2. 3. Required procedure

2.3.1. Summary forfeiture

2.3.2. Administrative asset forfeiture

2.3.3. Judicial asset forfeiture

3. Asset forfeiture for property involved in organized crime

3.1. Activity that can lead to asset forfeiture

3.2. Types of property subject to asset forfeiture

3.3. Required procedure

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Police Misconduct and Civil Rights Violations; Penal Code 245(a)(1) PC Assault with a Deadly Weapon (ADW); California Penal Code 597 PC Animal Abuse and Cruelty Laws; California Internet Fraud Laws; Carrying a Concealed Weapon in a Vehicle or on your Person; Manufacture or Sale of a Counterfeit Mark (Penal Code 350 PC); California Penal Code 597.5 PC Dogfighting Laws; California Drug Crimes; Health & Safety Code Section 11379.6 HS California Laws re Manufacturing of Drugs and Narcotics; Health and Safety Code 11352 HS Selling or Transportation of a Controlled Substance; Health and Safety Code 11351 HS California's "Drug Possession for Sale" Law; Medical Marijuana and the Compassionate Use Act of 1996; California Criminal Jury Trials; Penal Code 186.22 PC California's Criminal Street Gang Sentencing Enhancement; Health Care Fraud Defense; California Penal Code 530.5 PC Identity Theft Laws; Bribery Law in California; Penal Code 311.3 & 311.11 PC California Child Pornography; California Penal Code 518 PC Blackmail & Extortion Laws; Penal Code 207, 208, 209, 209.5 PC California Kidnapping Laws; Penal Code 211 PC California Robbery Law; Penal Code 487 PC California "Grand Theft" Law; and Penal Code 496 PC Receiving Stolen Property.

1. Overview of California asset forfeiture

1.1. Asset forfeiture overview

In some ways, asset forfeiture looks like just another form of criminal penalty, like prison time or a criminal fine. But in fact it is very different.

For starters, you can lose your property to asset forfeiture even if you are innocent ... or have not even been accused of a crime yourself!5

Also, in most cases asset forfeiture is technically not a criminal penalty. Instead, the law considers it a civil one.6

What this means in practice Is that you have fewer rights and protections in an asset forfeiture proceeding than you do in a criminal case. For example, you don't have the right to a court-appointed attorney if your property is seized and you can not afford an attorney on your own.7

Asset forfeiture is startlingly common in California. In 2010, California law enforcement Initiated 3,344 asset forfeiture proceedings. The value of all the property Involved added up to more than twenty-four million dollars ($24,000,000).8

1.2. Potential for abuse

According to the American Civil Liberties Union (the ACLU), asset forfeiture laws "create huge incentives for law enforcement officers to police for profit."9

This is because police departments get to keep a fraction of the proceeds of any property they seize. In California, sixty-five percent (65%) of asset forfeiture proceeds go to law enforcement.10

In other words, cops and their employers stand to benefit financially by seizing as much property as they possibly can! This creates an obvious incentive for police misconduct.

A common practice called "equitable sharing" makes matters even worse.

The laws passed by the California legislature actually provide pretty good protections for individuals caught up in asset forfeiture proceedings.11 But California equitable sharing allows those cops to get around laws by handing property they have seized over to federal law enforcement agencies. That property then gets handled under federal asset forfeiture laws, which are much harsher than California's. Local and California state agencies get to keep eighty percent (80%) of the proceeds of the property seized, while the feds keep the other twenty percent (20%).12

What this means is that California cops can do an end-run around the restrictions on asset forfeiture that were put in place by California's own elected officials ... and still make plenty of money for their departments! Over three hundred million dollars ($300,000,000) worth of assets were seized in California through equitable sharing between 2000 and 2008.13

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1.3. Examples of property subject to asset forfeiture in California

Asset forfeiture can happen in a wide variety of situations in California. Various sections of the California Penal Code and other laws spell out when it can occur.

Some examples of property that can be seized in criminal cases include:

However, by far the most common and Important path to asset forfeiture in California is the Uniform Controlled Substances Act, aka California's drug laws.

2. Asset forfeiture under California's drug laws

California's Uniform Controlled Substances Act, Health & Safety Code Section 11000 et seq., creates a complicated scheme for the seizure and forfeiture of property Involved in drug crimes.19

2.1. Kinds of property that may be forfeited

Virtually any kind of property Involved in the commission of a California drug crime is subject to asset forfeiture. This includes:

  • Any controlled substances (drugs) that were manufactured, distributed, dispensed, or acquired illegally;20
  • Any equipment or raw materials that were used, or were "Intended for use," for manufacturing of drugs and narcotics, or for delivering, importing, or exporting a controlled substance;21
  • Any property that was used as a container for either controlled substances or the aforementioned raw materials or equipment ... except for real estate, boats, plans, or vehicles;22
  • All books, records, and research materials used or "intended for use" for the violation of California's Uniform Controlled Substances Act;23
  • The interest of any registered owner of a boat, airplane, or other vehicle that has been used for the manufacture, possession for sale, or sale of drugs in certain specified mounts (except that this does not apply to a married person's community property interest in a commercial vehicle that is the only one available to the defendant's immediate family);24
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  • Any money, securities, negotiable instruments, or anything else of value that is used or is intended to be used to pay for controlled substances, that is traceable to the selling or transportation of a controlled substance, or that is used or intended to be used for certain other violations of the drug laws;25
  • Any actual property-land or buildings-that was used or allowed to be used by its owner for the sale, use, manufacture, storage, or distribution of controlled substances (including in the operation of a "drug house"), or was fortified to prevent law enforcement from entering because drug crimes were going on inside, in violation of certain specified laws.26

Thankfully, there is an exception to this last item: the police can not seize a home under this section if it is used as a family residence or for other lawful purposes. Also, they cannot seize any real estate owned by two or more persons if one of them did not know that it was being used for illegal purposes.27

So here are some examples of situations where property might be forfeited under these laws:

Example: Sophia's son Terry has severe attention deficit hyperactivity disorder. Terry takes the drug Ritalin legally, though a prescription, to control his symptoms.

One day Nick, a friend of Terry's, comes over to their house, finds a large (and expensive) supply of Ritalin in the bathroom, and steals it. Then Nick is arrested for selling the Ritalin on the street in violation of California drug laws. 

Because Nick was distributing Ritalin in violation of the law, the police can seize it28--and Sophia and Terry may have trouble getting it back.

Example: Tanya is arrested while driving a car with a large amount (over ten pounds) of marijuana in the trunk and is charged with possession for sale.
The car's owner is Tanya's mother, Rose. Plus, the title to the car is held by Rose's bank, from whom she took out a loan to buy the car. The police seize the car and begin asset forfeiture proceedings.29
This puts Rose in default under her car loan and ruins her credit rating.
Example: Russell is a drug dealer who is using some of the proceeds of his criminal career to fund a college savings account for his nephew.
When Russell is arrested, the prosecutors may confiscate that account, even though Russell's nephew has been counting on the money.30

2.2. Conviction requirement and exceptions

2.2.1 Conviction requirement

Certainly it would make sense for there to be a requirement that someone be convicted of a crime before their assets could be forfeited. Otherwise, the police could seize and keep innocent people's assets whenever they felt like it!

California asset forfeiture law does require that there be a conviction for some --- but not all --- asset forfeitures under the Uniform Controlled Substances Act. Basically, there needs to be a conviction in an "underlying or related criminal action" before there can be forfeiture of any of the following property:

  1. A boat, airplane, or vehicle;
  2. Money, securities, etc. worth up to twenty-five thousand dollars ($25,000); or
  3. Any real estate.31

Also, the defendant needs to be convicted of a crime that took place within five (5) years of the date the property was seized or the date a notice of forfeiture was issued.32

It's Important to note that this does not mean that the defendant has to be convicted before the property can be seized. Instead, it just means that there needs to be a conviction before it can be forfeited --- meaning, before it becomes the property of the government and is lost forever to the original owners.33

Also, this requirement applies only if the forfeiture is "contested."34 As we'll discuss in Section 2.3 of this article, anyone who has an interest in property that has been seized for asset forfeiture needs to move quickly to contest the forfeiture. Otherwise, they risk losing the property ... even If they have never been convicted or charged with a crime themselves!

2.2.2. Situations where conviction is not required

As you can see, it's not the case that a conviction is required before any property can be forfeited.

Interestingly, if the police seize cash or negotiable instruments worth more than twenty-five thousand dollars ($25,000), that money may be forfeited even if no one is ever convicted of a drug crime in connection with it.35

In that case, the government still has to prove before a court that the money came from or was going to be used for illegal drug transactions. But it only needs to prove this by "clear and convincing evidence" ... not the typical criminal standard of "beyond a reasonable doubt."36

So what does this mean for the people in our examples above?

Example: With Sophia and Terry, whose Ritalin was stolen and sold on the street by Nick ... there is no requirement for conviction for asset forfeiture of controlled substances. So the Ritalin may be forfeited even if Nick is never convicted of a crime.

Example: With Rose, whose daughter Tanya was arrested with marijuana in the trunk of Rose's car ... Tanya will need to be convicted before Rose can permanently lose her car . 37 (Of course, that may not help her if the police seize her car while the charges against Tanya are pending, and if her loan lender declares her in default because the car was seized.)
Example: With Russell, the drug dealer who had set up a college fund for his nephew .... if the amount of money in the college fund traceable to drug proceeds is less than $25,000, then Russell will need to be convicted before that money can be forfeited.38
But if it is more than $25,000, then the government can take it even if Russell is never convicted. (But the government will still have to show in a civil trial, by clear and convincing evidence, that the money came from illegal drug sales.)39

Also, there is an important exception to the requirement that a defendant be convicted before a vehicle, real property, or $25,000 or less in money can be forfeited. If the defendant in the underlying criminal action willfully fails to appear, then the conviction requirement disappears completely.40

Even worse, if this happens, the government will barely have to prove anything. It just needs to make a "prima facie" case that the property is subject to asset forfeiture under the law, which means that it just needs to supply some basic evidence that the property is related to a crime.41

To go back to our example of Tanya and Rose above:

Example: Let's say Tanya manages to post bail. Then she flees to Mexico and does not appear for her criminal proceedings. 
The government can keep Rose's car if it can muster some evidence that it was used for the crime of possession for sale. (The fact that Tanya had a large amount of marijuana in the trunk when she was arrested will probably be enough.)

2. 3. Required Procedures

Whether you are a criminal defendant or just the unlucky owner of an asset That Has Been Seized for forfeiture, you do have rights That May help you get your property back. California Under asset forfeiture law, the government has to follow Certain Procedures before it can declare forfeited property.

(But note That the police can seize and hold onto property with minimal procedure beforehand. 42 The Procedures Described here must be formally Followed before the right of ownership of the property transfers to the government.)

2.3.1 Summary forfeiture

When certain Schedule I controlled substances are seized by police, they can be forfeited without any procedures of any kind. 43

The drugs that are subject to this so-called asset forfeiture summary procedure include:

  • Marijuana;
  • Heroin;
  • Ecstasy;
  • LSD; and
  • Peyote.44

However, let's say the police seize marijuana from someone who has the right to possess it legally under California's medical marijuana laws. In this case, the government is required to give the marijuana back.45

2.3.2. Administrative asset forfeiture

The government can use a relatively streamlined procedure called "administrative forfeiture" in some asset forfeiture cases. Administrative forfeiture can be used for personal property (that is, anything that's not real estate) worth twenty-five thousand dollars ($25,000) or less.

According to Santa Ana criminal defense lawyer John Murray46:

"If your property is seized under the asset forfeiture section of the California Uniform Controlled Substances Act, you'll want to have a good understanding of what procedures the government is required to follow. These procedures are designed to protect property owners, and asset forfeiture cannot be finalized if the procedure the government followed was defective. One of the best ways to keep your property from being forfeited is to catch the prosecutor in a procedural error."

Required notice

If the police seize personal property worth $25,000 or less, the prosecutor has to do the following two things:

1. Give notice of the forfeiture proceedings to a) everyone named in the receipt for the property, and b) everyone with an ownership interest in the property.47 In order to figure out who has an ownership interest in property, the prosecutor is required to investigate federal agency and DMV records on vehicles, boats, and airplanes.48

There are Certain requirements for the form the notice has to take. For everyone named in the receipt, it has to be biven by service of process. For everyone else, it has to be delivered in person or by registered mail.49

Also, the notice is required to contain certain content. This includes: a) a description of the property, b) the appraised value of the property, c) the date and place where the property was seized or the location of property that has not yet been seized, d) the alleged violation of the law, and e) instructions and time limits for filing and serving a claim regarding the property.50

2. Publish notice of the forfeiture proceedings in a general-circulation newspaper in the county where the property was seized or is located.51

Filing a claim

Let's say you receive personal notice of asset forfeiture for property that you own, or you see the notice in the newspaper. Your next move is to file a claim regarding the property. And you need to move quickly-- claims have to be filed within thirty (30) days of either the day you received notice of forfeiture or, if you did not get personal notice, the day the notice was first published in the newspaper.52 You may be able to get an extension of this deadline from the court ... but otherwise, if you miss the deadline, you will not have a chance to contest the forfeiture.53

How do you file a claim? A form for filing a claim (Form MC-200) is available on the website of the California courts. You must first complete the form and file it in the superior court in the county where the defendant was charged. Then, within thirty (30) days after you file the form with the court, you need to serve it on the prosecutor who has Initiated the forfeiture proceeding.54

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If the property is worth more than five thousand dollars ($5,000), the court may charge you a fee to file the claim.55

If no claims are filed

In an administrative forfeiture proceeding (which can be used, as we mentioned above, only where the property is not real estate and is worth $25,000 or less), if no claims are filed by the 30-day deadline, then the prosecutor can declare the property forfeited.56 All the prosecutor needs to do is draft and sign a "declaration of forfeiture," which will be sent to all the same people who initially got the notice described above.57

This it is why it is so important not to miss the deadline for filing a claim. It is also incredibly important that your claim be filed properly, because a defective claim may not work to prevent the property from being forfeited.

If claims are filed

If one or more claims are filed by the 30-day deadline, then the property can no longer be forfeited through the simpler administrative forfeiture procedure. Instead, the prosecutor has to convert the procedure to a court forfeiture.58

2.3.3. Judicial asset forfeiture

Prosecutors are required to use the more involved "legal forfeiture" procedure if either of the following is true:

  1. The property they want to forfeit either is real estate or is worth more than twenty-five thousand dollars ($25,000),59 OR
  2. Someone filed a claim on time after the prosecutors sent out notices under the administrative forfeiture procedure.60

Petition and notice

A court forfeiture begins when a prosecutor files a "petition of forfeiture" with the superior court in the county where the defendant has been charged with a crime, or in the county where the property has been seized or is located.61 The prosecutor has to file this petition no later than one year after the property is seized.62

Then the prosecutor is required to provide the same notice that they must provide for an administrative forfeiture:

  1. Notice through personal service to everyone named on the receipt for the property;
  2. Notice through personal delivery or registered mail to everyone with an ownership interest in the property; and
  3. Publication of the notice of forfeiture in an area newspaper.63

However, if the prosecutor already sent notice to individuals as part of the administrative forfeiture procedure, they do not need to send notices to those same people again after the process converts to court forfeiture.64

Filing a claim

As with the administrative forfeiture procedure, people have thirty (30) days to file a claim after they receive notice of forfeiture (or after the notice is first published in the newspaper, if they did not receive notice).65

The procedure for filing a claim is also the same as under the administrative forfeiture procedure. You may use the form for the claim (Form MC-200) provided by the California courts. You must first complete the form and file it in the superior court in the county where the defendant was charged. Then, within thirty (30) days after you file the form with the court, you need to serve it on the prosecutor who has initiated the forfeiture proceeding.66 

If the property is worth more than five thousand dollars ($5,000), the court may charge you a fee to file the claim.67

However, if you already filed a claim when the prosecutor was trying to proceed under the administrative forfeiture procedure, you do not need to file another one if the process converts to court forfeiture.68

If no claim is filed

If no claim is filed in a court asset forfeiture proceeding by the 30-day deadline, the prosecutor cannot just declare the property forfeited, like he / she can in an administrative forfeiture. Instead, the prosecutor has to make a motion to the court for an order of forfeiture.69

The court will probably grant the motion and issue an order of forfeiture. But the prosecutor still has to make a "prima facie" case-that is, present some evidence-that the property is connected to a crime and so really is subject to asset forfeiture.70

If a claim is filed

If anyone files a claim to the property by the 30-day deadline, then there will be a trial to determine whether the property will be forfeited. It needs to take place not later than another thirty (30) days after the claim was filed.71

This has to be a civil jury trial, unless all the parties agree otherwise.72

As we discussed above, for some types of property, the defendant needs to be found guilty of the crime before asset forfeiture can occur. In these cases, the same jury or judge needs to decide both the criminal charges and the forfeiture question ... unless all the parties agree otherwise.73 The forfeiture question will be separated out from the question of the defendant's guilt and dealt with in a separate proceeding.74

What the prosecutor has to prove

If a forfeiture goes to trial, then what? Basically, the prosecutor needs to convince the jury of two things:

  1. That the property was used for or derived from a crime and so meets the definition of property subject to asset forfeiture; AND
  2. All owners of the property consented to its use, with the knowledge that it would be or was used to break the law in a way that can lead to forfeiture.75

The prosecutor needs to prove both of these things beyond a reasonable doubt ... unless the property seized was cash or negotiable instruments with a value of more than twenty-five thousand dollars ($25,000). In that case, the prosecutor only needs to prove these things by clear and convincing evidence.76

What does this mean in real life? Let's return to our examples from above:

Example: Sophia and Terry legally possessed Ritalin, but the drug was seized by police after a family friend stole it from their house and sold it on the street. The prosecutor probably can not show that they knowingly consented to the Ritalin being stolen and sold. If Sophia and Terry can file a claim and properly present their case at a forfeiture trial, they can probably get their Ritalin (or reimbursement for it) back.

Example: Rose had her car seized after her daughter Tanya was arrested while driving It with marijuana in the trunk. The prosecutor will try to prove that Rose consented to Tanya's using the car and knew that Tanya would use the car to commit the crime of possession of marijuana for sale. If the prosecutor can not prove this, Rose gets her car back.

It may seem ridiculous that you could find yourself arguing in front of a jury that you deserve to get your property back even if you have not been personally charged with a crime. But in fact this happens all the time due to California's asset forfeiture laws under the Uniform Controlled Substances Act.

Even if you yourself have been charged with a drug crime in California, asset forfeiture laws can add extraordinarily harsh penalties--loss of very valuable property that you may have worked hard for--on top of the regular criminal penalties.

If you find yourself in this unlucky position, an experienced California asset forfeiture attorney can help you combat the arguments of the prosecutor ... who, remember, knows the local law enforcement that stands to benefit financially if they can win at the forfeiture trial.

3. Asset forfeiture for property involved in organized crime

Another common route to asset forfeiture in California is a California law known as the Control of Profits of Organized Crime Act (Penal Code 186.1 PC et seq.).77

3.1 Activity that can lead to asset forfeiture

Asset forfeiture in organized crime cases is possible only when there has been a criminal conviction.78

The conviction has to be for a "pattern of criminal profiteering activity."79 This means that all of the following have to be true:

  1. The conviction needs to be based on at least two (2) criminal acts that have similar distinguishing characteristics and are not isolated events;80
  2. The crimes need to have been committed as a pattern of organized crime; and
  3. The crimes need to have been "criminal profiteering activity," which means crimes committed for financial gain.81

What is the definition of "organized crime"? It is conspiratorial crime--meaning, it takes place as the result of an agreement among two or more people--that either a) seeks to supply illegal goods and services (like drugs or prostitution) in an organized way, or b) seeks to conduct certain other illegal activities like arson for profit, smuggling, etc. through planning and coordination among several people.82

Criminal street gang activity counts as organized crime. Health care fraud and identity theft can also be considered organized crime.83

Many different crimes can trigger asset forfeiture under the California Control of Profits of Organized Crime Act. To name just a few, these include:

3.2 Types of property subject to asset forfeiture

If you are convicted in a criminal case involving a pattern of criminal profiteering activity, some of your property may be seized and forfeited.

The California Control of Profits of Organized Crime Act allows prosecutors to seize:

  1. any property interest acquired through a pattern of criminal profiteering activity, and
  2. all proceeds of a pattern of criminal profiteering activity, as well as anything of value received in exchange for those proceeds. 85
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Here are some examples to illustrate what this means:

Example: Mike and several associates run an organized crime ring in which they receive consumer electronics stolen from burglars and re-sell them at a huge markup through a network of pawn shops. Mike is arrested, and the police seize several hundred laptop computers from his operation. If Mike is convicted, the computers will be forfeited, because they are a property interest acquired through a pattern of criminal profiteering activity.
Example: Henry is a member of a gang that sells drugs and prostitution. He earns a good living from this work and spends his earnings on a house, a car, and lots of jewelry for his girlfriend. If he is arrested and convicted for his role in the gang, all of those possessions could be seized, including the jewelry he gave to his girlfriend .... because they are things of value received in exchange for the proceeds of organized crime.

3.3. Required procedure

Just as with asset forfeiture in a drug case, prosecutors must follow specified procedures before certain assets can be forfeited in an organized crime case. If they fail to follow these procedures, forfeiture can not take place.

First the prosecutor has to file a petition for asset forfeiture with the court in the county where the criminal charges are being brought. Then notice has to be served on everyone who has an ownership interest in the assets, either by registered mail or by personal delivery. If there's anyone on whom notice can not be served, the prosecutor has to publish the notice for three weeks in a local newspaper.86

Any third parties with an interest in the property have to file a claim with the court within thirty (30) days of the date they received notice, or the date notice was first published in the newspaper.87

If any claims are filed, or the defendant argues that the property shouldn't be forfeited, then a hearing will be held on the forfeiture in the same court where the criminal charges are being tried. The hearing has to be before a jury, but it can be a different one than the jury that decides the criminal charges.88

The prosecutor needs to prove beyond a reasonable doubt that the property is subject to forfeiture. 89

Call us for help ...
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If you or loved one is in need of help with asset forfeiture and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation by phone or in our office. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1 People v. US $6.500 Currency (1989) 215 Cal.App.3d 1542, 1546. ("The seemingly harsh rule which permits condemnation ... without regard to the owner's culpability is explained by the fact that historically forfeiture is a civil proceeding in rem. The vehicle or other inanimate object itself is being treated as guilty of wrongdoing, regardless of its owner's conduct. ") (internal quotation marks omitted)

2 Same.

3 Bennis v. Michigan (1996) 516 US 442, 446 ("[A] long and unbroken line of cases holds that an owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use.")

4 Our California criminal defense and asset forfeiture attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices throughout the state conveniently located in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

5 Bennis v. Michigan, (1996) 516 US 442, 446.

6 People v. Madeyski (2001) 94 Cal.App.4th 659, 663. ("Cases that have considered the issue have  found that forfeiture proceedings under these statutues are civil in nature.")

7 Same, at 662. ("Defendant takes the position that a proceeding under section 502.01 is criminal in nature, and thus evokes the right to counsel. The position is untenable.")

8 State of California Asset Forfeiture Report 2010, at 2 .

9 ACLU Blog of Rights, "Easy Money: Civil Asset Forfeiture Abuse by Police," Feb. 3, 2010.

10 Marian R. Williams et al. "Policing for Profit: The Abuse of Civil Asset Forfeiture," Mar. 2010, at 17.

11 Same, at 49.

12 Same, at 23-25.

13 Same, at 49.

14 Penal Code 245(e) PC. ("(E) When a person is convicted of a violation of this section in a case involving use of a deadly weapon or instrument or firearm, and the weapon or instrument or firearm is owned by that person, the court shall order that the weapon or instrument or firearm be deemed a nuisance, and it shall be confiscated and disposed of in the manner provided by Sections 18000 and 18005.")

15 Penal Code 502.01 PC - Forfeiture of property used in committing telecommunications or computer crimes; redemption of interests; application to minors; distribution of proceeds.

16 Penal Code 597(g)(1) PC. ("(g)1) Upon the conviction of a person charged with a violation of this section by causing or permitting an act of cruelty, as defined in Section 599B, all animals lawfully impounded and seized with respect to the violation by a peace officer, officer of a humane society, or officer of a pound or animals regulation department of a public agency shall be adjudged by the court to be forfeited and thereupon shall be awarded to the impounding officer for proper disposition. A person convicted of a violation of this section by causing or permitting an act of cruelty, as defined in Section 599B, shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition.")

17 Penal Code 25700 PC - Unlawful carrying of handgun as nuisance. See also Criminal Code 18000 PC - Surrender to authorities of weapon.

18 Penal Code 598.1 PC. ("(b)(1) Any property interest, whether tangible or intangible, that was acquired through the commission of any of the crimes listed in subdivision (a) of Section 597.5 or subdivision (b) of Section 597b shall be subject to forfeiture, including both personal and real property, profits, proceeds, and the instrumentalities acquired, accumulated, or used by dogfighting or cockfighting participants, organizers, transporters of animals and equipment, breeders and trainers of fighting birds or fighting dogs, and persons or who steal or obtain illegally dogs or other animals for fighting, Including bait and sparring animals.")

19 Health & Safety Code 11469 HS et seq.

20 Health & Safety Code 1147(a) HS. ("The following are subject to forfeiture: (a) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this division.")

21 Health & Safety Code 11470(b) HS. ("(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.")

22 Health & Safety Code 11470(c) HS. ("(c) All 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).")

23 Health & Safety Code 11470(d) HS. ("(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.")

24 Health & Safety Code 11470(e) HS. ("(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 [certain controlled substances]. No interest in a vehicle which may lawfully be driven on the highway with a class C, class M1, or M2 license class, 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 M2 class vehicle available to the defendant's immediate family.")

25 Health & Safety Code 11470(f) HS. ("(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.")

26 Health & Safety Code 11470(g) HS. ("(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.")

See also Health & Safety Code 11366 HS & Health & Safety Code 11366.5 HS & Health & Safety Code 11366.6 HS.

27 Health & Safety Code 11470(g) HS. ("(g)... 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. ")

28 Health & Safety Code 11470(a) HS, endnote 20 above.

29 Health & Safety Code 11470 (e) HS, endnote 24 above.

30 Health & Safety Code 11470 (f) HS, endnote 25 above.

31 Health & Safety Code 11488.4(i) HS. ("(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 s contested, the state or the 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 local or state 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 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 it was by trial 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.")

32 Same.

33 Health & Safety Code 11471. ("Property subject to forfeiture under this division may be seized by any peace officer upon process issued by any court having jurisdiction over the property. Seizure without process may be made if any of the following situations exist: ( a) The seizure is incident to an arrest or a search under a search warrant. (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this division. (c) There is probable cause to believe that the property is directly or Indirectly dangerous to health or safety. (d) There is probable cause to believe that the property was used or is intended to be used in violation of this division... .. ")

34 Health & Safety Code 11488.4(i)(1) - (3).

35 Health & Safety Code 11488.4(i)(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 the local governmental entity shall have the burden of proving by clear and convincing evidence that the property for which such forfeiture is sought is as 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.")

36 Same.

37 Health & Safety Code 11488.4(i)(1) - (3) HS.

38 Same.

39 Health & Safety Code 11488.4(i)(4) HS.

40 Health & Safety Code 11488.4(k) HS. ("(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, if 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 local or state governmental entity. In its application for default, the state governmental or local 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 the local governmental entity shall be required to establish a prima facie case in support of its petition for forfeiture. ")

41 Same.

42 Health & Safety Code 11471, endnote 33 above.

43 Health & Safety Code 11475 HS. ("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. ")

44 See US Department of Justice, Drug Enforcement Administration, Controlled Substance Schedules.

45 City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 391. ("Mindful as we are of the overall supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court's order to return Kha's marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha's right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha's property. ")

46 Santa Ana criminal asset forfeiture and defense lawyer John Murray has handled numerous cases involving narcotics offenses and assists clients at a number of locations of the California courts, including the Central Justice Center in Santa Ana, the Harbor Justice Center in Newport Beach, the North Justice Center in Fullerton, the West Justice Center in Westminster, and the Laguna Hills Harbor Justice Center.

47 Health & Safety 11488.4(j). ("(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).... ")

See also Health & Safety 11488.4(c). ("(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.")

48 Health & Safety 11488.4(d). ("(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. ")

49 Health & Safety 11488.4(c).

50 Health & Safety 11488.4(j). ("(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.")

51 Same.

See also Health & Safety Code 11488.4(e) HS. ("(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.")

52 Health & Safety Code 11488.5(a)(1) HS. ("Any person claiming an interest in the property seized pursuant to Section 11488 may, unless for good cause shown the court extends the time for filing, at any time within 30 days from the date of the first publication of the notice of seizure, if that person was not personally served or served by mail, or within 30 days after receipt of actual notice, file with the superior court of the county in which the defendant has been charged with the underlying or related criminal offense or in which the property was seized or, if there was no seizure, in which the property is located, a claim, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the property. An endorsed copy of the claim shall be served by the claimant on the Attorney General or district attorney, as appropriate, within 30 days of the filing of the claim. The Judicial Council shall develop and approve official forms for the verified claim that is to be filed pursuant to this section. The official forms shall be drafted in nontechnical language, in English and in Spanish, and shall be made available through the office of the clerk of the appropriate court.")

53 Same.

54 Same.

55 Health & Safety Code 11488.5(a)(3) HS. ("(3) The clerk of the court shall not charge or collect a fee for the filing of a claim in any case in which the value of the respondent property as specified in the notice is five thousand dollars ($5,000) or less. If the value of the property, as specified in the notice, is more than five thousand dollars ($5,000), the clerk of the court shall charge the filing fee specified in Section 70611 of the Government Code.")

56 Health & Safety Code 11488.4(j) HS. ("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 1149. 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.")

57 Same.

58 Same. ("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.")

59 Health & Safety Code 11488.4(a) HS. ("(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) through (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.")

60 Health & Safety Code 11488.4 (j) HS, endnote 58 above.

61 Health & Safety Code 11488.4 (a) HS, endnote 59 above.

62 Same.

63 Health & Safety Code 11488.4 (c) HS, endnote 47 above.

See also Health & Safety Code 11488.4(e) HS, endnote 24 above.

64 Health & Safety Code 11488.4 (j) HS. ("The petition of forfeiture shall then proceed pursuant to the other provisions of this chapter, except that additional notice need not be given and additional claim need not be filed.")

65 Health & Safety Code 11488.5(a)(1) HS, endnote 52 above.

66 Same.

67 Health & Safety Code 11488.5(a)(3) HS, endnote 55 above.

68 Health & Safety Code 11488.4 (j) HS, endnote 64 above.

69 Health & Safety Code 11488.5(b)(1) HS. ("(b)(1) If at the end of the time set forth in subdivision (a) there is no claim on file, the court, upon motion, shall declare the property seized or subject to forfeiture pursuant to subdivisions (a) to (g), inclusive, of Section 11470 forfeited to the state. In moving for a default judgment pursuant to this subdivision, the state or local governmental entity shall be required to establish a prima facie case in support of its petition for forfeiture.")

70 Same.

71 Health & Safety Code 11488.5(c)(1). ("((c)(1) If a verified claim is filed, the forfeiture proceeding shall be set for hearing on a day not less than 30 days therefrom, and the proceeding shall have priority over other civil cases. Notice of the hearing shall be given in the same manner as provided in Section 11488.4. Such a verified claim or a claim filed pursuant to subdivision (j) of Section 11488.4 shall not be admissible in the proceedings regarding the underlying or related criminal offense set forth in subdivision (a) of Section 11488. ")

72 Health & Safety Code 11488.5(c)(2). ("The hearing shall be by jury, unless waived by consent of all parties.")

73 Health & Safety Code 11488.4(i)(3). ("(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. ")

74 Same.

75 Health & Safety Code 11488.5(d)(1) - (2).

76 Health & Safety Code 11488.4 (i) HS, endnote 31 above.

77 Penal Code 186.1 PC. ("The Legislature hereby declares and finds that an effective means of punishing and deterring criminal activities of organized crime is through the forfeiture of profits acquired and accumulated as a result of such criminal activities. It is the intent of the Legislature that the "California Control of Profits of Organized Crime Act" be used by prosecutors to punish and deter only such activities.")

78 Penal Code 186.3(a) PC. ("(A) In any case in which a person is alleged to have been engaged in a pattern of criminal profiteering activity, upon a conviction of the underlying offense, the assets listed in subdivisions (b) and (c) shall be subject to forfeiture upon proof of the provisions of subdivision (d) of Section 186.5. ")

79 Same.

80 Penal Code 186.2(b)(1) PC. ("(b)(1) "Pattern of criminal profiteering activity" means engaging in at least two incidents of criminal profiteering, as defined by this chapter, that meet the following requirements: (A) Have the same or a like purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics. (B) Are not isolated events. (C) Were committed as a criminal activity of organized crime. ")

81 Penal Code 186.2 (a) PC. 

82 Penal Code 186.2 (d) PC. ("(D)" Organized crime "Means That crime is of a conspiratorial nature and That Is either of an organized nature and seeks to supply illegal goods and services: such as narcotics, prostitution, loan-sharking, gambling, and pornography, or That , Through planning and coordination of Individual Efforts, seeks to conduct the illegal activities of arson for profit, hijacking, insurance fraud, smuggling, vehicle theft rings operating, fraud Against the beverage container recycling program, systematically or encumbering the assets of a business for the purpose of Defrauding creditors. "Organized crime" also Means Crime Committed by a criminal street gang, as defined in subdivision (f) of Section 186.22. "Organized crime" also Means false or fraudulent activities, schemes, or artifices, as described in Section 14107 of the Welfare and Institutions Code, and the theft of Personal identifying information, as defined in Section 530.5. ")

83 Same.

84 Penal Code 186.2 (a) PC.

85 Penal Code 186.3 PC. ("(a) In any case in which a person is alleged to have been engaged in a pattern of criminal profiteering activity, upon a conviction of the underlying offense, the assets listed in subdivisions (b) and (c) shall be subject to forfeiture upon proof of the provisions of subdivision (d) of Section 186.5. (b) Any property interest whether tangible or intangible, acquired through a pattern of criminal profiteering activity.(c) All proceeds of a pattern of criminal profiteering activity, which property shall include all things of value that may have been received in exchange for the proceeds immediately derived from the pattern of criminal profiteering activity.")

See also Penal Code 186.5(d). ("(d) At the forfeiture hearing, the prosecuting agency shall have the burden of establishing beyond a reasonable doubt that the defendant was engaged in a pattern of criminal profiteering activity and that the property alleged in the petition comes within the provisions of subdivision (b) or (c) of Section 186.3.")

86 Penal Code 186.4(a) PC. ("(a) The prosecuting agency shall, in conjunction with the criminal proceeding, file a petition of forfeiture with the superior court of the county in which the defendant has been charged with the underlying criminal offense, which shall allege that the defendant has engaged in a pattern of criminal profiteering activity, including the acts or threats chargeable as crimes and the property forfeitable pursuant to Section 186.3. The prosecuting agency shall make service of process of a notice regarding that petition upon every individual who may have a property interest in the alleged proceeds, which notice shall state that any interested party may file a verified claim with the superior court stating the amount of their claimed interest and an affirmation or denial of the prosecuting agency's allegation. If the notices cannot be given by registered mail or personal delivery, the notices shall be published for at least three successive weeks in a newspaper of general circulation in the county where the property is located. If the property alleged to be subject to forfeiture is real property, the prosecuting agency shall, at the time of filing the petition of forfeiture, record a lis pendens in each county in which the real property is situated which specifically identifies the real property alleged to be subject to forfeiture. The judgment of forfeiture shall not affect the interest in real property of any third party which was acquired prior to the recording of the lis pendens.")

87 Penal Code 186.5 PC. ("(a) Any person claiming an interest in the property or proceeds may, at any time within 30 days from the date of the first publication of the notice of seizure, 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 his or her interest in the property or proceeds. A verified copy of the claim shall be given by the claimant to the Attorney General or district attorney, as appropriate. (b)(1) If, at the end of the time set forth in subdivision (a), an interested person, other than the defendant, has not filed a claim, the court, upon motion, shall declare that the person has defaulted upon his or her alleged interest, and it shall be subject to forfeiture upon proof of the provisions of subdivision (d).")

88 Same. ("(c)(1) The forfeiture proceeding shall be set for hearing in the superior court in which the underlying criminal offense will be tried. (2) If the defendant is found guilty of the underlying offense, the issue of forfeiture shall be promptly tried, either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties.")

89 Same, subdivision (d), endnote 85 above.

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