Asset Forfeiture

People v. Superior Court of Solano County (Vandenburgh) (January 23, 2025, A170818) __ Cal.App.5th ___

“All state Civil Asset Forfeiture cases in Solano County are initiated by the District Attorney's Office,” according to Olsen. Someone from the arresting agency calls a deputy district attorney at or near the time of an arrest and describes the circumstances of the case. The deputy district attorney then approves or declines the initiation of civil asset forfeiture proceedings. “If Civil Asset Forfeiture proceedings are approved and initiated by a Deputy District Attorney, an officer from the arresting agency is instructed to immediately serve the suspect and/or interested party” with an executed notice of seizure, which recites the date and location of the seizure, the applicable Health and Safety Code section, the name of the approving deputy district attorney, and detailed instructions on how to file a claim, along with a blank claim form. “After telephonically reviewing the matter, I approved the initiation of Civil Asset Forfeiture proceedings.” He documented the interaction on a one-page “asset forfeiture initiation form.” (Capitalization & boldface omitted.) A police officer served notice of the seizure on Vandenburgh on October 22, 2020. The notice was on a form apparently generated by the district attorney's office, with the name of the Solano County District Attorney in the heading. It informed Vandenburgh that deputy district attorney Olsen had initiated forfeiture proceedings and that Vandenburgh had 30 days to file a verified claim to the property. It appears that a police officer filled in blank lines on the forms to specify the name of the police agency, the property seized, the date, time, and place of the seizure, the statute allegedly violated, and Olsen's name. The notice does not appear to have included a copy of the asset forfeiture initiation form Olsen had filled out.

Section 11488, subdivision (a) of the Health and Safety Code permits a peace officer who makes an arrest for certain drug crimes to seize the controlled substances and any money involved in an illegal drug transaction. (§§ 11488, subd. (a), 11470, subds. (a)—(f).) The Attorney General or the district attorney may then institute forfeiture proceedings. (§§ 11488.1, 11488.2; Cuevas v. Superior Court (2013) 221 Cal.App.4th 1312, 1320–1321, 165 Cal.Rptr.3d 325 (Cuevas).) The statute provides for either judicial forfeiture or, for personal property of no more than $25,000 in value, administrative or nonjudicial forfeiture. (Cuevas, at p. 1321, 165 Cal.Rptr.3d 325; see §§ 11488.4, subd. (a) [judicial forfeiture], 11488.4, subd. (j) [nonjudicial forfeiture].) At issue here are the requirements for nonjudicial forfeiture.

For nonjudicial forfeiture, section 11488.4, subdivision (j) provides that the Attorney General or district attorney may order the forfeiture and “shall provide notice of proceedings under this subdivision.” The notice must specify the property and its value, the date and place of its seizure, and the violation of law alleged with respect to it. (Ibid.) The notice must include instructions on how to file a claim to the property pursuant to section 11488.5. (§ 11488.4, subd. (j)(5)(A).) And this notice must comply with subdivision (c) of section 11488.4, which provides that “the Attorney General or district attorney shall make service of process upon every individual designated in a receipt issued for the property seized,” as well as on other interested persons. (§ 11488.4, subds. (c), (j).) The prosecuting agency must also provide notice through publication in a newspaper of general circulation. (§ 11488.4, subds. (e), (j).) Then section 11488.5 sets forth a procedure and timelines for a person who claims an interest in the property to recover it. If no claim is timely filed, the Attorney General or district attorney must prepare a written declaration of forfeiture and dispose of the property according to law. (§ 11488.4, subd. (j)(5)(B).) If a claim is timely filed, the Attorney General or district attorney must file a petition for judicial forfeiture within 30 days. (§ 11488.4, subd. (j)(5)(C).) At a hearing on that petition, there is a rebuttable presumption that the person to whom a receipt was issued is the property owner. (§ 11488, subd. (c).)

In a caveat important to the case before us, however, the Cuevas court added, “We do not hold that [the police officer], if the forfeiture decision had been made by an appropriate prosecuting agency, could not have properly served the notice of forfeiture on behalf of the prosecuting agency in the role of process server. [Citation.] Rather, his service of the notice of forfeiture was invalid because an appropriate prosecuting agency did not initiate it, and neither he nor the [police department] had the authority to initiate the process or serve notice in their own right.” (Cuevas, supra, 221 Cal.App.4th at p. 1328, fn. 8, 165 Cal.Rptr.3d 325.)

Following Cuevas, the same court in Ramirez v. Tulare County District Attorney's Office (2017) 9 Cal.App.5th 911, 917, 215 Cal.Rptr.3d 512 (Ramirez) again emphasized that nonjudicial forfeiture proceedings initiated by peace officers rather than prosecuting agencies are invalid. Three separate cases were at issue in the appeal. In each case, a law enforcement officer issued a notice of forfeiture proceedings, and no one in the local district attorney's office signed the notice or reviewed the evidence before execution of the notice. (Id. at pp. 918–922, 215 Cal.Rptr.3d 512.) Under the forfeiture statutes as interpreted by the court in Cuevas, the law enforcement officers could not validly initiate forfeiture proceedings, the purported proceedings were “ ‘invalid in the first instance,’ ” and the defendants could pursue return of their property in the trial court without having first filed a claim. (Id. at pp. 930–932, 215 Cal.Rptr.3d 512; § 11488.5, subd. (a)(1).) In reaching this conclusion, however, the court noted that although police officers lack authority to initiate proceedings and issue notice on their own, they “may serve a notice issued by the Attorney General or district attorney.” (Ramirez, at p. 931, fn. 18, 215 Cal.Rptr.3d 512.)

According to the People, Olsen's actions in reviewing the matters with the police officers and approving the initiation of proceedings were sufficient to satisfy the dictates of Cuevas and Ramirez. 910On this record, we agree. Cuevas establishes, and Ramirez confirms, that only prosecuting agencies—not law enforcement officers—have authority to initiate forfeiture proceedings, and law enforcement officers lack authority to “serve notice in their own right.” (Cuevas, supra, 221 Cal.App.4th at 1327–1328 & fn. 8, 165 Cal.Rptr.3d 325; accord Ramirez, supra, 9 Cal.App.5th at p. 931 & fn. 18, 215 Cal.Rptr.3d 512.) But they also recognize that, once the appropriate prosecuting agency has initiated proceedings, notice may be served by law enforcement officers, not on their own behalf but on behalf of the prosecuting agency. As Ramirez explains, although police officers lack authority to initiate proceedings and issue notice on their own, they “may serve a notice issued by the Attorney General or district attorney.” (Ramirez, at p. 931, fn. 18, 215 Cal.Rptr.3d 512.)

Solano County's standard procedure for civil asset forfeiture proceedings involves the arresting agency calling an available deputy district attorney at or near the time of the arrest to describe the circumstances of the case. The deputy district attorney then either approves or declines initiation of proceedings. And, if the deputy district attorney approves and initiates proceedings, “an officer from the arresting agency is instructed to immediately serve the suspect ... with an executed [notice of seizure].” The notice is a form issued in the name of the District Attorney's office and a local law enforcement agency, and it attributes the initiation of forfeiture proceedings to a named deputy district attorney (here Olsen). The form is not signed by that attorney, nor by anyone else before it is served, but we do not find a requirement in the statute for an attorney's signature in order for a notice to be valid. Olsen's records showed that, on both occasions at issue here, he approved initiation of civil asset forfeiture proceedings and documented his conversation with the police officer, including the basis for and timing of his decision to initiate proceedings. The notices in both instances relate that, at a specified date and time, Olsen initiated forfeiture of specified currency found at a particular location based on a specific alleged drug crime.

• 7 The normal practice of the office of the Solano County District Attorney, as described and exemplified by the facts of this case, satisfies the requirements of Cuevas and Ramirez. Police officers are serving notice, not on their own behalf, but on behalf of the district attorney after a deputy in that office initiates forfeiture proceedings and instructs law enforcement to serve the notice. During the particular transactions at issue here, Olsen documented initiation of the forfeitures, and we may presume that he followed the normal official procedures of the district attorney's office in directing that the ensuing notices issue and be served.

evidence that Olsen reviewed the details of the arrest, decided to initiate proceedings and, pursuant to standard procedures, directed the officers to serve Vandenburgh with the district attorney's preprinted notice filled in with case-specific facts that Olsen and the law enforcement officer had discussed (and which Olsen elsewhere documented). In our view, these procedures satisfy the requirements that the prosecuting agency initiate forfeiture proceedings and provide notice, and they establish that the law enforcement officers were properly acting on behalf of the district attorney's office rather than on their own behalf in serving the notice.

Narcotics

What can be forfeited

Health and Safety Code section 11470, under SB94

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 a substance containing 14.25 grams or more of heroin, or 14.25 grams or more of a substance containing heroin, or 28.5 grams or more of Schedule I controlled substances except cannabis, peyote, or psilocybin; 10 pounds dry weight or more of cannabis, peyote, or psilocybin; or 28.5 grams or more of cocaine, as specified in paragraph (6) of subdivision (b) of Section 11055, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or methamphetamine; or a substance containing 28.5 grams or more of cocaine, as specified in paragraph (6) of subdivision (b) of Section 11055, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or methamphetamine; or 57 grams or more of a substance containing cocaine, as specified in paragraph (6) of subdivision (b) of Section 11055, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or methamphetamine; or 28.5 grams or more of Schedule II controlled substances. An 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 12804.9 of the Vehicle Code, shall not 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)

(1) 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.

(2) 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.

Little RICO

Statutes

Penal Code section 186.2

AB1637

For purposes of this chapter, the following definitions apply:

(a) “Criminal profiteering activity” means an act committed or attempted or a threat made for financial gain or advantage, which act or threat may be charged as a crime under any of the following sections:

(1) Arson, as defined in Section 451.

(2) Bribery, as defined in Sections 67, 67.5, and 68.

(3) Child pornography or exploitation, as defined in subdivision (b) of Section 311.2, or Section 311.3 or 311.4, which may be prosecuted as a felony.

(4) Felonious assault, as defined in Section 245.

(5) Embezzlement, as defined in Sections 424 and 503.

(6) Extortion, as defined in Section 518.

(7) Forgery, as defined in Section 470.

(8) Gambling, as defined in Sections 320, 321, 322, 323, 326, 330a, 330b, 330c, 330.1, 330.4, 337a to 337f, inclusive, and Section 337i, except the activities of a person who participates solely as an individual bettor.

(9) Kidnapping, as defined in Section 207.

(10) Mayhem, as defined in Section 203.

(11) Murder, as defined in Section 187.

(12) Pimping and pandering, as defined in Section 266.

(13) Receiving stolen property, as defined in Section 496.

(14) Robbery, as defined in Section 211.

(15) Solicitation of crimes, as defined in Section 653f.

(16) Grand theft, as defined in Section 487 or subdivision (a) of Section 487a.

(17) Trafficking in controlled substances, as defined in Sections 11351, 11352, and 11353 of the Health and Safety Code.

(18) Violation of the laws governing corporate securities, as defined in Section 25541 of the Corporations Code.

(19) Offenses contained in Chapter 7.5 (commencing with Section 311) of Title 9, relating to obscene matter, or in Chapter 7.6 (commencing with Section 313) of Title 9, relating to harmful matter that may be prosecuted as a felony.

(20) Presentation of a false or fraudulent claim, as defined in Section 550.

(21) False or fraudulent activities, schemes, or artifices, as described in Section 14107 of the Welfare and Institutions Code.

(22) Money laundering, as defined in Section 186.10.

(23) Offenses relating to the counterfeit of a registered mark, as specified in Section 350, or offenses relating to piracy, as specified in Section 653w.

(24) Offenses relating to the unauthorized access to computers, computer systems, and computer data, as specified in Section 502.

(25) Conspiracy to commit any of the crimes listed above, as defined in Section 182.

(26) Subdivision (a) of Section 186.22, or a felony subject to enhancement as specified in subdivision (b) of Section 186.22.

(27) Offenses related to fraud or theft against the state’s beverage container recycling program, including, but not limited to, those offenses specified in this subdivision and those criminal offenses specified in the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500) of the Public Resources Code).

(28) Human trafficking, as defined in Section 236.1.

(29) A crime in which the perpetrator induces, encourages, or persuades a person under 18 years of age to engage in a commercial sex act. For purposes of this paragraph, a commercial sex act means any sexual conduct on account of which anything of value is given or received by any person.

(30) A crime in which the perpetrator, through force, fear, coercion, deceit, violence, duress, menace, or threat of unlawful injury to the victim or to another person, causes a person under 18 years of age to engage in a commercial sex act. For purposes of this paragraph, a commercial sex act means any sexual conduct on account of which anything of value is given or received by any person.

(31) Theft of personal identifying information, as defined in Section 530.5.

(32) Offenses involving the theft of a motor vehicle, as specified in Section 10851 of the Vehicle Code.

(33) Abduction or procurement by fraudulent inducement for prostitution, as defined in Section 266a.

(34)

(A) Offenses relating to insurance fraud as specified in Sections 2106, 2108, 2109, 2110, 2110.3, 2110.5, 2110.7, and 2117 of the Unemployment Insurance Code.

(B) Fraud offenses relating to COVID-19 pandemic-related insurance programs administered by the Employment Development Department. For the purposes of this subparagraph, “fraud offenses” includes the offenses specified in subparagraph (A).

(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 similar 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.

(2) Acts that would constitute a “pattern of criminal profiteering activity” shall not be used by a prosecuting agency to seek the remedies provided by this chapter unless the underlying offense occurred after the effective date of this chapter and the prior act occurred within 10 years, excluding any period of imprisonment, of the commission of the underlying offense. A prior act shall not be used by a prosecuting agency to seek remedies provided by this chapter if a prosecution for that act resulted in an acquittal.

(c) “Prosecuting agency” means the Attorney General or the district attorney of any county.

(d) “Organized crime” means crime that is of a conspiratorial nature and that is either of an organized nature and seeks to supply illegal goods or services such as narcotics, prostitution, pimping and pandering, loan-sharking, counterfeiting of a registered mark in violation of Section 350, the piracy of a recording or audiovisual work in violation of Section 653w, 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, operating vehicle theft rings, fraud against the beverage container recycling program, embezzlement, securities fraud, insurance fraud in violation of the provisions listed in paragraph (34) of subdivision (a), grand theft, money laundering, forgery, or systematically 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.

(e) “Underlying offense” means an offense enumerated in subdivision (a) for which the defendant is being prosecuted.

Interaction of criminal and civil

Evidence, that automobile owner had been found not guilty of charge of possession of marijuana cigarettes in criminal proceedings relating to same facts was not admissible in proceeding for forfeiture of automobile because of its use in unlawfully keeping, depositing and concealing narcotics. Health and Safety Code, §§ 11500, 11610. (People v. One 1952 Chevrolet Bel Aire (1954) 128 Cal.App.2d 414; People v. One 1950 Cadillac 2-Door Club Coupe, Engine No. 506263120 (1955) 133 Cal.App.2d 311.)

Fourth Amendment still applies in civil asset forfeiture. (One 1958 Plymouth Sedan v. Com. of Pa. (1965) 380 U.S. 693.)

Constitutional rights

Fifth Amendment

350Ek33

"Conversely, the Fifth Amendment's Self–Incrimination Clause, which is textually limited to “criminal case [s],” has been applied in civil forfeiture proceedings, but only where the forfeiture statute had made the culpability of the owner relevant, see United States v. United States Coin & Currency, 401 U.S. 715, 721–722, 91 S.Ct. 1041, 1045, 28 L.Ed.2d 434 (1971), or where the owner faced the possibility of subsequent criminal proceedings, see Boyd, 116 U.S., at 634, 6 S.Ct., at 534; see also United States v. Ward, 448 U.S. 242, 253–254, 100 S.Ct. 2636, 2644, 65 L.Ed.2d 742 (1980) (discussing Boyd)." (Austin v. United States (1993) 509 U.S. 602, 608, fn. 4.)

"Moreover, a defendant does not risk incriminating himself by claiming that he owns property that is subject to forfeiture. A defendant's claim of ownership at a pre-trial suppression hearing of property that he contends was unlawfully seized may not be used to prove the defendant's guilt. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968). For the same reason, a defendant's claim of ownership of property that was subject to forfeiture may not be used for that purpose." (U.S. v. Cretacci (9th Cir. 1995) 62 F.3d 307, 311.)

Fifth Amendment right in forfeiture proceedings

Wolhstrom v. Buchanan (1994) 884 P.2d 687, 693; 180 Ariz. 389, 395.

U.S. v. Certain Real Property and Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y. (2d Cir. 1995) 55 F.3d 78, 86-87.)

Adverse inference

United States v. Real Prop. Known & Numbered as Rural Route 1, Box 137 (6th Cir. 1994) 24 F.3d 845, 851.

United States v. Prop. Located at 15 Black Ledge Drive (2d Cir. 1990) 897 F.2d 97, 103.

United States v. $57,790,000 in U.S. Currency, 2007 WL 433198 (S.D. Cal. Jan 29, 2007) 01CV414-BTM

Secondary Sources

Witkin California Procedure, Actions, section 74,