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HomeMy WebLinkAbout4/28/2006 B A K E R S F I E L D CITY MANAGER'S OFFICE MEMORANDUM April 28, 2006 TO: Honorable Mayor and City Council FROM: Alan Tandy, City Manager SUBJECT: General Information 1. As of this writing we have had the VIP opening for the Park at River Walk, and the weekend public opening lies ahead. I think it is very safe to predict an extremely Positive community reaction - a new centerpiece of views, vistas, and entertainment which will be a major source of community pride! Thanks go to Dianne Hoover and her entire staff in Recreation and Parks for a massive effort on this weekend's activities. The Sports Village, our 170 acre park at Taft Highway and Gosford, and the Mill Creek project are two in the planning stages that have the potential for a similar kind of community centerpiece impact. Let us take the momentum from this opening to continue to advance those two projects as well! 2. The Board of Supervisor's agenda for next Tuesday, May 2nd, will include the attached recommendation from the County Administrative Officer for adoption of a resolution in support of a downtown location for the proposed federal courthouse. 3. In addition to the many activities planned at the Park at River Walk this weekend, all five of our spray parks will open on Saturday, just in time for the hot weather! Those locations are: Planz, Wayside, Beale, Jefferson, and Martin Luther King Parks. All the spray parks are wheelchair accessible, and will be open seven days a week from 9:00 am to 8:00 pm. They will operate from now through October, weather permitting. 4. The Streets Division work schedule for the week of May 1St is attached. 5. A response to a Council request is enclosed: Councilmember Carson • Report on the feasibility of establishing an ordinance to authorize the seizure of drug/gang houses. AT:rs cc: Department Heads Pamela McCarthy, City Clerk Kern County Administrative Office 06 APR 28 AM 10: 30 e li t.11Y CLERK Administrative Center 1115 Truxtun Avenue, Fifth Floor• Bakersfield,CA 933014639 RONALD M.ERREA Telephone 661-868-3198 • FAX 661-868-3190 • TTY Relay 800-735-2929 County Administrative Officer May 2, 2006 Board of Supervisors Kern County Administrative Center 1115 Truxtun Avenue Bakersfield, CA 93301 RESOLUTION SUPPORTING DOWNTOWN BAKERSFIELD LOCATION FOR FEDERAL COURTHOUSE Fiscal Impact: None This is to request that your Board adopt the attached resolution in support of a downtown Bakersfield location for the proposed federal courthouse and urging the General Services Administration (GSA) to collaborate with the City of Bakersfield and downtown property owners to resolve GSA site requirements and competitiveness issues to facilitate the location of the courthouse at a downtown site. As your Board is aware, the City of Bakersfield negotiated with the GSA for a number of years seeking to locate a proposed new federal courthouse within the Downtown Bakersfield Redevelopment Project Area to help stimulate economic revitalization. However, the GSA instead reached agreement with the firm of Castle& Cooke to build the new courthouse on property at the corner of Stockdale Highway and Buena Vista Road, six miles from the downtown area. A previous report to your Board pointed out objections by the City and nearby homeowners to the proposed courthouse site. The City also made its objections in a letter to the GSA filed as part of a property owner's formal protest to the decision. Following denial of that appeal, the property owner has filed a further protest, thereby delaying indefinitely a planned community meeting at which GSA officials were scheduled to explain their decision. The attached resolution points out that the GSA appears to have contradicted an executive order and its own guidelines regarding preference for downtown sites in locating federal facilities, and the resolution also calls attention to the ill effects on air quality of increased vehicle traffic and congestion created by a courthouse site that is six miles from downtown. Therefore, IT IS RECOMMENDED that your Board adopt the attached resolution in support of a downtown Bakersfield location for the new federal courthouse and urging GSA, the City of Bakersfield, and downtown property owners to collaborate on resolving site requirements and competitiveness issues so that the courthouse can be located downtown, and authorize the Chairman to sign correspondence to the appropriate officials. Since Ay, ' Ronald M. Errea County Administrative Officer RM E:ADKU.EGG ENcowtlioLLceresl lbos.doc CF 400.50.40 Attachment cc: City of Bakersfield Kern County Bar Association BEFORE THE BOARD OF SUPERVISORS COUNTY OF KERN, STATE OF CALIFORNIA In the matter of: Resolution No. Reference No. SUPPORT FOR DOWNTOWN BAKERSFIELD LOCATION FOR FEDERAL COURTHOUSE AND URGING GENERAL SERVICES ADMINISTRATION TO WORK WITH CITY OF BAKERSFIELD AND DOWNTOWN PROPERTY OWNERS I,DENISE PENNELL, Clerk of the Board of Supervisors of the County of Kern, State of California, hereby certify that the following resolution, on motion of Supervisor , seconded by Supervisor , was duly and regularly adopted by the Board of Supervisors of the County of Kern at an official meeting thereof on the day of ,2006,by the following vote and that a copy of the resolution has been delivered to the Chairman of the Board of Supervisors. AYES: NOES: ABSENT: DENISE PENNELL Clerk of the Board of Supervisors County of Kern, State of California Deputy Clerk RESOLUTION Section 1. WHEREAS: (a) The federal government approached the City of Bakersfield in 2003 with plans to locate a new courthouse in Bakersfield; and (b) The City of Bakersfield identified potential property in downtown Bakersfield to the General Services Administration (GSA) and offered the City's help in assembling a site for the new courthouse; and (c) Executive Order 12072 requires federal agencies to give first consideration to central business areas in meeting federal space needs in urban areas,to consider the management efficiencies to be gained by siting new facilities near other government facilities, and to locate facilities in developments that include other office or research facilities, and GSA guidelines promote the goals of Executive Order 12072; and (d) After reviewing potential downtown sites, GSA officials widened the delineated area to include sites outside the central business area in order to ensure adequate competition in acquiring leased space; and (e) The GSA awarded the courthouse bid to a site that is six miles from the central business area, far from existing courts and other law enforcement facilities, is unpopulated by existing office buildings as required in the agency's bid solicitation requirements, that distinctly contradicts the purpose of Executive Order 12072 "to impact the economic development and employment opportunities in the urban area," and that will negatively impact air quality through increased vehicle trips and traffic congestion; and (f) In deference to objections by the City of Bakersfield and residents surrounding the proposed courthouse site, the development firm of Castle & Cooke has stated its willingness to withdraw from its agreement with GSA to build the courthouse at the southwest Bakersfield location; and (g) The County of Kern does not know if proposals from downtown property owners met the criteria of the RFP, nor does the County know if downtown courthouse site proposals were reasonably competitive in cost to taxpayers; Section 2. NOW, THEREFORE, IT IS HEREBY RESOLVED by the Board of Supervisors of the County of Kern, State of California, as follows: 1. The Board supports the location of the federal courthouse in downtown Bakersfield. 2. The Board urges the General Services Administration, downtown property owners, and the City of Bakersfield to collaborate for the purposes of satisfying GSA requirements and competitive issues to the fullest extent possible, thereby facilitating the location of the federal courthouse in downtown Bakersfield. BOARD OF SUPERVISORS DENISE PENNELL SUPERVISORS CLERK OF BOARD OF SUPERVISORS Jon McQuiston................District 1 Kern County Administrative Center Don Maben District 2 �- 1115 Truxtun Avenue, 5th Floor Barbara Patrick.............. District 3 Bakersfield, California 93301 Raymond A.Watson ...... District 4 Telephone 661-868-3585 n: Michael J.Rubio ............. District 5 TTY Relay 800-735-2929 May 2,2006 Mr. Peter G. Stamison Regional Administrator U.S. General Services Administration 450 Golden Gate Avenue Bakersfield, CA 94102-3434 RE: Resolution Supporting Downtown Bakersfield Location for Federal Courthouse Dear Mr. Stamison: The Kern County Board of Supervisors has adopted the attached resolution in support of a downtown Bakersfield location for the proposed federal courthouse and urging the General Services Administration to collaborate with the City of Bakersfield and downtown property owners to resolve GSA site requirements and competitiveness issues to facilitate the location of the courthouse at a downtown site. The City of Bakersfield negotiated with the General Services Administration for a number of years seeking to locate a proposed new federal courthouse within the Downtown Bakersfield Redevelopment Project Area to help stimulate economic revitalization. These efforts were in keeping with Executive Order 12072 and your agency's own guidelines for promoting urban revitalization. However, the GSA instead reached agreement with the firm of Castle & Cooke to build the new courthouse on property at the comer of Stockdale Highway and Buena Vista Road, six miles from the downtown area. This was done over objections by the City and nearby homeowners. The attached resolution points out that the GSA appears to have contradicted an executive order and its own guidelines regarding preference for downtown sites in locating federal facilities, and the resolution also calls attention to the ill effects on air quality of increased vehicle traffic and congestion created by a courthouse site that is six miles from downtown. Finally, the resolution notes that Castle & Cooke have offered to withdraw from the agreement to build the courthouse at the StockdaleBuena Vista site. Our Board believes that the federal courthouse should be located in downtown Bakersfield, where it will be most convenient to users, where it will be welcomed by the community it serves, and where it will help to stimulate the central business area as anticipated by Executive Order 12072. We urge the General Services Administration to work with the City of Bakersfield and downtown property owners to resolve any site requirements and competitiveness issues that may have prevented GSA from considering a downtown location for the courthouse so that the courthouse can be located in the central business area. Sincerely, Ray Watson, Vice-Chairman Kern County Board of Supervisors R W:ADKU,EGG ENcourthousercsllgsaB.doc CF 400.50.40 Attachment cc: City of Bakersfield Kern County Bar Association The Honorable Jim Costa The Honorable William M. Thomas BAKEhs� U r d c9LIFOR 1� MEMORANDUM CITY ATTORNEY April 25, 2006 TO: ALAN TANDY, CITY MANAGER 1 FROM: VIRGINIA GENNARO, CITY ATTORNEY-,'-, �0- 4t/ SUBJECT: FEASIBILITY OF ESTABLISHING AN ORDINANCE TO AUTHORIZE THE SEIZURE OF DRUG/GANG HOUSES COUNCIL REFERRAL NO. 1464, WARD 1 Councilmember Carson requested the committee review the feasibility of establishing an ordinance to authorize the seizure of drug/gang houses and requested the City Attorney provide a copy of the law which enables this action to the committee for discussion. Copies of the relevant law are attached. City Attorney will also bring copies to the next meeting of the Safe Neighborhoods and Community Relations Committee. VG/do S1000NCIUReferrals\05-06 Referrals\Carson-Drug houses.doc Search - 1 Result - forfeit/p property/p narcotics or drugs Pagel of 3 Source: Legal>/ . . ./> C_A-Deering's California Codes Annotated,Constitution, Court Rules&ALS, Comb- Book Browse' TOC: De_erings California Code_Annotated Court Rules and ALS > !. ._/ > CHAPTER 8. Seizure and Disposition > § 11469. Guidelines for seizure and forfeiture of property Section: Cal Health &Saf Code§11469 Cal Health & Saf Code § 11469 DEERING'S CALIFORNIA CODES ANNOTATED Practitioner's Toolbox Q 0� Copyright (c) 2006 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. ± History All rights reserved. Notes_of Decisions *** THIS DOCUMENT REFLECTS ALL URGENCY Resources & Practice Tools LEGISLATION ENACTED *** *** THROUGH 2006 CH. 17, APPROVED 4/10/06 *** = Collateral References > Defense of Narcotics Cases HEALTH AND SAFETY CODE (Matthew Bender)_ch 4B_"Forfeiture Proceedings DIVISION 10. Uniform Controlled Substances Act CHAPTER 8. Seizure and Disposition ♦ GO_TO CALIFORNIA COD_E_S ARCHIVE DIRECTORY Cal Health & Saf Code § 11469 (2006) § 11469. Guidelines for seizure and forfeiture of property 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 cf 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. http : 'tivlvi��.lexis_coma're;earth-retrieve?_m-edl4 4')6b80e8060f518c07b8tk)eab7t�OL�-displa... 4 1 11 2006 Search - 1 Result- forfeit/p property/p narcotics or drugs Page 2 of 3 (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. ? History: Added Stats 1994 ch 314 § 1 (AB 114), effective August 19, 1994. ? Collateral References: Defense_of Narcotics_Cases_(M__atthew_Bender) ch_4B_"Forfeiture_Proceedings". t Notes of Decisions: Under the newly enacted asset forfeiture law (Heal_th_&_S_af._Code,_§ 11469 et seq.), effective August 19, 1994, and applicable to property seized or forfeiture proceedings initiated after January 1, 1994, the law applicable to property seized or forfeiture proceedings initiated before that date was the law enacted in 1988. The earlier version of the law contained a blanket clause calling for certain provisions (Healt_h_& Saf, Code, §§ 11470, 11488, 11488.4, and 11488.5) to expire and revert to their December 31, 1988, form on January 1, 1994. However, in 1990 the Legislature inserted individual sunset clauses in §§ 11470, 11488.4, and 11488.5, which provided for the provisions to expire on January 1, 1994, without any reversion. While arguably the 1990 amendments repealed the blanket sunset provisions to the extent no reversion occurred in January 1, 1994, repeals by implication are disfavored. The Legislature intended the subject provisions to revert to an earlier form on January 1, 1994, and that form revived the prior version even though the enactment itself contained a January 1, 1989 expiration date. The Legislature's amendment of that general sunset provision in 1991 ensured the 1989 version's revival on January 1, 1994. Mundy v Superior Court_(1995,.4th Dist)_31_Cal App 4th 1396, 37 Cal_ Rptr_2d_568. A newly enacted asset forfeiture law (Health.& Saf,_Code,_ § 11469 et seq.), applicable to assets seized and proceedings initiated after January 1, 1994, and providing for the application of a prior law, offering fewer procedural safeguards, to matters occurring before that date, did not violate the ex post facto prohibition (U.S. Const„ art. I, § 10, cl. 1; Cal. Const., art. I, § 9). Defendant's property was subject to forfeiture under both versions of the law. When a change in the law addresses the conduct of trials that have yet to occur, as opposed to past conduct, the law is deemed prospective only, and does not implicate ex post facto concerns. Because the procedural protections at issue related primarily to the future C orfeiture hearing, e.g., the order and burden of proof, they were properly characterized as Prospective only. To the extent they changed the rules for jurisdiction, it is well established that changing the place for trial after commission of the offense does not violate the ex post facto prohibition. Because defendant was being subjected to the exact same statutes that were in effect at the time his property was seized and forfeiture proceedings began, he could not claim unfair surprise or vindictive government action. Mundy v Superior Court (1995, 4th Dist) 31 Cal App 4th 1396, 37 Cal Rptr 2d 568. A newly enacted asset forfeiture law (Health & Saf. Code, § 11469 et seq.), applicable to hv,p. 1�-«-titi,.lex is.com'res zarch'retrieN-e?_m=ed14436bS0eS060f>1 Sc07bSfl)eab i f'O&displa... 4 1 1 '2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 3 of 3 assets seized and proceedings initiated after January 1, 1994, and providing for the application of a prior law, offering fewer procedural safeguards, to matters occurring before that date, did not create a suspect classification for purposes of equal protection as to persons who were subject to the relatively harsh procedures of the prior statute. A refusal to apply a statute retroactively does not violate U.S._Const.,__1__4th_Amend, Equal protection does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time. Mundy v_Superior Court (1995, 4th Dist) 31 Cal App._4t_h__1396,__37_Cal_Rptr 2d_568. A local ordinance authorizing the civil forfeiture of vehicles involved in the solicitation of prostitution or the acquisition of controlled substances was not preempted by H__&_S_C_§ 11409 et seq., which govern certain drug-related asset forfeitures. The ordinance included vehicles used by drug buyers, an area untouched by statewide legislation. As a result, it could not be said that the nuisance caused by drug buyers had become exclusively a matter of state concern or that state law would not tolerate further or additional local action. Nor did the adverse effect of the ordinance on transient citizens of the state outweigh the benefit to the municipality. In addition, there was no conflict with Veh_C__§_22659,5, which contains no explicit statement of intent to occupy the area of nuisance abatement with respect to vehicles used to solicit prostitution. The ordinance was not enacted pursuant to § 22659.5 and it was not constrained by its procedural requirements. Horton v_City of_Oakland_(2000,_1st_Dist)_82 Cal App 4_th.580, 98_Cal__Rptr_2d_371. State of California, through the California Uniform Controlled Substances Act (UCSA), H C.§_ 1.1000 et seq., legislatively occupied an area of statewide importance: the civil forfeiture of vehicles when used in connection with the drug trade. H & S_C_§§_1146.9, 114.88.4 made the UCSA binding on local governmental agencies. Stockton, Cal., Municipal Code § 5-1000 et seq., intrudes into this area in significant and contradictory ways: O'Connell v_City_of Stockton(2005,_3rd_DistJ_128 Cal App 4th_83.1, Source: Legal >/ . . ./> CA-Deering's California Codes Annotated, Constitution, Court Rules &ALS, Comb- Book Browse TOC: Deerings Cal fomia Code Annotated Court Rules and ALS_ > / ./ > CHAPTER_8._S_eizure and_Disposition > § 11469. Guidelines for seizure and forfeiture of property Section: Cal Health &Saf Code §11469 View: Full Date/Time: Tuesday,April 11. 2006-7:17 PM EDT About Le_xisNexis i Terms &Ccnditicns LexIsNexis Copyright_© 2006 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http:; �G��ti�.leti _com,re��srch'retrie�e? m=ed114�6b80e8060f518c07b8t�eab?tb&dispta... 4 11 2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 1 of 10 Source: Legal >/. . ./>CA-Deering's California Codes Annotated,Constitution, Court Rules&ALS, Comb- Book Browse TOC: Deerings California Code Annotated Court Rules and AL_S > / / > CHAPTER 8,_S_eizure and Dis_osition >§ 11470. Items subject to forfeiture —— --- P- Section: Cal Health &Saf Code§ 11470 Cal Health & Saf Code § 11470 DEERING'S CALIFORNIA CODES ANNOTATED ,practiti Q. Copyright (c) 2006 by Matthew Bender & Company, Inc. Practitioner's Toolbox 0 a member of the LexisNexis Group. ± History All rights reserved. 'F Notes *** THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED { Notes of Decisions *** *** THROUGH 2006 CH. 17, APPROVED 4/10/06 *** Resources & Practice Tools HEALTH AND SAFETY CODE ± Related statutes & Rules DIVISION 10. Uniform Controlled Substances Act CHAPTER S. Seizure and Disposition collateral References + GO TO CALIFORNIA COD-ES ARCHIVE DIRECTORY n C t;, Achieve grim, nal La.V - - - - Cal Health & Saf Code 11470 (2006) '` '`` J `y t~e `r; ? na'-ci ' '-a``' 42 Hast U 132.5. § 11470. Items subject to forfeiture ` "a' S op`n:cns: > Y, _ res«ence is The following subject us d _ _..,,.-ate mar,j�ar,a for g are bject to forfeiture: se r c. ev -e _ s (a) All controlled substances which c;C. ve s`'bjec� ich have been t of manufactured, distributed, dispensed, or acquired in " °' _ 74_0ps_cal, violation of this division. Atty.Gen. 70. More...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 (5) 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 Schedu?e II controlled http: ti�tvti�_1e�is_com'research retries e? m=a�dsfcb lObfiI cd;c4bI49504866aa 17Rdispia... =1, 11 2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 2 of 10 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. t History: Added + Stats lag ' ch 314 § 3 (AB 114;, effective August 19, 1994. Amended . Stats 1997 ch 241 § 1 (S6 457). r Notes: .± 1. Editor's Notes k 2. Former Sections 3. Amendments a 4. Historical Derivation http reSearcn retrie%e'?_m=a7dSrcb-'Obf7lcd-�csbl4l)�04866aa1 %&displa... 4 11 2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 3 of 10 5. Note t 1. Editor's Notes: There was another section of this number which was added Stats 1986 ch 1044 § 25.7, . operative January 1, 1989, amended Stats 1987 ch 1174 § 8, effective September 26, 1987, operative January 1, 1989, and repealed Stats 1988 ch 1492 § 2. * 2. Former Sections: Former § 11470, similar to the present section, was added Stats 1972 ch 1407 § 3, amended Stats 1976 ch 1407 § 1, Stats 1977 ch 771 § 1, Stats 1982 ch 1280 § 1, ch 1289 § 1.5, Stats 1983 ch 948 § 1, Stats 1985 ch 3 § 13, effective January 29, 1985, ch 870 § 1, Stats 1986 ch 534, § 2, effective August 20, 1986, ch 1032 § 1, ch 1044 § 25.5, Stats 1987 ch 924 § 1, effective September 22, 1987, Stats 1988 ch 1492 § 1, amendment operative until January 1, 1994, Stats 1989 ch 1195 § 1.3, + Stats-1990 ch_1200� 1, amendments 1994. operative until January 1, 1994, and repealed + Stats 1994 ch 3. 14§_2, effective August 19, 7 3. Amendments: 1997 Amendment: (1) Added "manufacture of, or" in the first sentence of subd e (a) substituting "11380," for "or"' b adding ( )� (ad amended subd (f) by ( ) g , or 11383 , and (c) adding or a felony violation of Section 11366.8 of this code,"; and (3) substituted "11380, 11382, or 11383 of this code, or Section 182 of_the_Pe_nal_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," for "or 11382" in subd (h). 4 4. Historical Derivation: (a) Former H & S C § 11650, as enacted Stats 1939 ch 60. (b) Former H & S C § 11925, as added Stats 1969 ch 1091 § 4. (c) Stats 1929 ch 216 § 11, as amended Stats 1933 ch 253 § 11, Stats 1935 ch 813 § 7. r 5. Note: + Stats 1994 ch 314 provides: SEC. 25. It is the intent of the Legislature in repealing Sections 11470, 11473.3, 11488, 11488.4, and 11488.5 of the Health_and_Safety Code, as set forth in Sections 2, 7, 8, 11, 12, 14, and 14.5 of this act, to reduce the confusion and ambiguity which presently exist with respect to which, if any, version of those sections is operative. r Related Statutes & Rules: "Controlled substance": H & S C § 11007. Petition of forfeiture, investigation, and motion for return: H & S C § 11483.4. Franchise Tax Board: Gov C §§ 15700 et seq. ? Collateral References: Witkin & Epstein, Criminal Law "2d ed) §§ 1423-1426. Cal Jur 3d (Rev) Criminal Law §§ 1573, 1576, 1580, 1582, 1583, 15S4; Forfeitures and Penalties § 11. Law Review Articles: http:'lu ti�a.lzxis_com/research'retriev e"_m=a7dS feb40?nt-/l cd�c4b l 49-i04866aa l 7,-�-displa... 4, 11 2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 4 of 10 Fighting drugs with drug money in Caliornia--AB 4162 asset forfeiture: A new weapon in the war on drugs. 35 Dicta No. 12 p 7. Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives: Understanding and Transcending the Criminal-Civil Law Distinction. 42_Hast. U 1325. The Official Report of the National Commission Studying Marijuana: More misunderstanding. 8 USF LR 1. Cache and Prizes: Drug Asset Forfeiture in California. 20 Western St LR 633. Attorney General's Opinions: If parcel of land with residence is used to cultivate marijuana for sale, but there is no evidence concerning where marijuana is sold, property would not be subject to forfeiture without proof of additional evidence. 74 Ops.__CaL_ Atty._Gen._70.- Annotations: Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws. 50.ALR3d 172. Real property as subject of forfeiture under Uniform Controlled Substances Act or similar statutes. 86 ALR4th 995. Forfeiture of homestead based on criminal activity conducted on premises--state cases. 16_ALR 5th_855. Forfeiture of personal property used in illegal manufacture, processing, or sale of controlled substances under § 511 of Comprehensive Drug Abuse Prevention and Control Act of 1970 (_21 USCS 5 88.1), 59-ALR_Fed 765.- Who is exempt from forfeiture of drug proceeds under "innocent owner" provision of 21 USCS_§ 881(a)(6). 1.0.9 ALR_Fed_322. Who is exempt from forfeiture of real property under "innocent owner" provision of 2.1 USCS §-8-8.1_(a)(7). 110-ALR Fed_569. Who is exempt from forfeiture of conveyances under "innocent owner" provision of 21 USCS §881(a)(4). 112_ALP,-Fed-589. Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law-- Explanation or lack thereof. 4_ALR6th- 1.13. t Notes of Decisions: ± 1. In General 2. Constitutionality �. 3. Jurisdictional Issues .t 4. Other Applications T 1. In General The State was entitled to forfeiture of an automobile registered to a drug offender who used it to transport drugs even though the legal owner was about to repossess the car on account of delinquent payments and the value of the car was less than the unpaid balance, because the legal owner did not investigate the responsibility, character, and reputation of the registered owner. People v One 1957 Ford 2-Door (1960, 2nd Dist) 180 Cal App 2d 545, 4 Cal-Rptr 793. Forfeiture of the registered cc-owners' car was proper pursuant to former H & S C § 11614 because the police officers caught the registered owners' daughter smoking marijuana in the car, and it was irrelevant that the co-owners did not know that the car was being used for an illegal purpose, as the co-owners permitted the use of the car. People v One 1961 Ford Falcon (1963, 2nd Dist) 215 Cal App 2d 149, 30 Cal Rptr 110. Forfeiture of the registered co-owners' car was proper pursuant to former H & S C § 11619 because the police officers caught the registered owners' daughter smoking marijuana in the http: '%v%v%v.lexis.com�researcll,'retrieN-e`' m=a7d8feb40bt-7 1cdbctbl-19-04866aa17L�-displa... 4 111?Ot� Search - 1 Result - forfeit/p property/p narcotics or drugs Page 5 of 10 car; thus, the co-owners could not prove that the car was not in fact used to transport narcotics or that narcotics were not unlawfully possessed by an occupant of the vehicle. People_v_One_1961 Ford Falcon_(1963,_2nd Dist)_215 Ca_I_App_2d_149,__30_Ca_I_Rptr_110._ The Legislature, in enacting the statutes providing for forfeiture of money or property seized in connection with an arrest and conviction for certain offenses involving controlled substances (Health_& Saf._Code -§§_11470, 11488.4), did not intend that the trial court's ruling, that probable cause did not exist to order the forfeiture of the money or property, be the actual or functional equivalent of a ruling by the trial court that the money or property must be suppressed for evidentiary purposes because it was obtained as the result of an illegal search or seizure. People__v_Ford_(1985,5 th Dist) 163_CaI App 3d 736,_210 CaI_ Rptr 22._ Sunset provisions in the statutes governing forfeiture of property related to drug trafficking, which appear to result in the expiration of the forfeiture statutes, cannot be interpreted to lead to this result. As the statutes existed before 1989, they provided that they were in effect until Jan. 1, 1989. The statutes were amended to eliminate the requirement of a criminal conviction as a prerequisite to a forfeiture. These amendments included a sunset provision that they were in effect until Jan. 1, 1994, at which time the provisions existing on Dec. 31, 1988, would be in effect as if never amended. Although on their face the amendments appear to eliminate the forfeiture provisions, legislative intent should be gathered from the whole act rather than from isolated parts or words. The object sought to be achieved by the statute and the evil sought to be prevented are of prime consideration in its interpretation. Where the main purpose of the statute is expressed, the courts will construe it so as to effectuate that purpose by reading into it what is necessary or incident to the accomplishment of the object sought. There is nothing to support the absurd result that the Legislature apparently brought back the 1988 law on Jan. 1, 1994, only to have it instantly repealed by its own terms. Moreover, repeal of a statute can be effected only by language of unmistakable meaning. People v_0_ne 1986 Toyota-Pickup (1995, 5th Dist) 3.1,Cal App 4th 254, 37 Cal_Rptr 2d 2.9. The theoretical basis for the forfeiture of money under Health_&Saf._Code, §_1.1470 (items subject to forfeiture in connection with controlled substance violations), is not that the owner is criminally charged, but that the money is the ill-gotten fruit of illicit activity. The seemingly harsh rule permitting 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 is treated as being itself guilty of wrongdoing, regardless of its owner's conduct. People v $ 6,500 U.S. Currency (1989, 6th Dist) 215 Cal_App 3d 1542, 264-Cal Rptr 294. Notwithstanding the strong governmental interest in stemming illegal drug transactions, forfeiture statutes (Health &_Saf. Code,_§ 11470 et seq.) are disfavored and must be construed strictly in favor of the owner of the property. People v Ten $ 500 etc. Traveler's Checks (1993, 1st Dist) 16 Cal-App 4th 475,_20 Cal Rptr 2d 128. Health &_Saf. Code, § 1147.0, subd. (f), which allows a five-year period in which seized proceeds may be traced to an illegal drug exchange and therefore become subject to forfeiture, is not inconsistent with the one-year statute of limitations for filing the forfeiture complaint of Health & Saf._Code,__§ 1.1488,4, subd. (a). Read together, the two statutes establish that a forfeiture complaint must be filed within one year after the seizure of the property, and that thereafter, the People must demonstrate that the conduct providing the basis for the forfeiture occurred within five years of the seizure, the filing of a complaint, or the issuance of an order of forfeiture, whichever came first. People v Ten $ 500 etc. Traveler's Checks (1993, 1st Dist) 16 Cal App 4th 475, 20 Cal Rptr 2d 128. Under Health & Saf. Code, § 11470, subd. (f), providing for the forfeiture of money furnished in exchange for a controlled substance, evidence sufficient to support an inference that seized funds are related to some illegal activity does not establish even a prima facie case of probable cause for forfeiture absent the demonstration of some link between the cash and a narcotics transaction:. The government must establish some nexus between the seized funds and a narcotics transaction. To obtain a judgment of forfeiture, the People need not offer evidence of the discovery of significant quantities of narcotics or even direct evidence of a specific narcotics transaction. However, they must offer some evidentiary basis for inferring a link between the seized cash and past or future narcotics activity. This can be accomplished http-L!tivtvw.lexis.coin.researcn retries-e°_m=a7d8fcb40bf,Ied5c4b149504S66aaI7&displa... 4 1 1 '?006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 6 of 10 in a variety of ways, even without discovering large quantities of narcotics. People v $ 47,050 (1993, 1st Dist) 17 Cal App Atli 1319_22 Cal R tr 2d 32._ California courts are not bound by federal decisions, including those of the United States Supreme Court on nonfederal questions, but these decisions are instructive and entitled to great weight, particularly if a state's statute is derived from a federal statute. Federal authorities construing federal forfeiture statutes are particularly persuasive in actions involving forfeiture proceedings under Health_&Saf. Cod_e,�_11470 et seq., because the Legislature amended the California forfeiture statutes to bring them in line with corresponding federal statutes. People v $ 8,921 United States Currency_,(1994,_4th_Dist)_28 Cal-App_4th__1.226,_34 C_a_1 Rptr 2d.2.1__0. The lapse of 1988 statutes governing forfeitures of property connected with drug- trafficking (Health_&_Sa_f._Code,_§_11.470 et seq.) did not leave California with no asset forfeiture law, by operation of a sunset provision stating that on Jan. 1, 1994, forfeiture law would be as it read on Dec. 31, 1988. When the 1988 statutes were enacted, 1987 statutes were in effect. These statutes in turn had sunset provisions, but these provisions were qualified by language stating that they would sunset unless a later enacted statute deleted or extended the sunset date. The 1988 statutes, although not expressly deleting the sunset clause in the 1987 statutes, impliedly did so. Although an opinion of the Legislative Council concluded that the expiration of the 1988 law would result in no forfeiture statues, opinions of the Legislative Council are not binding on a court. Further, the Legislature could not have intended the absurd result that the 1987 law would revive on Jan. 1, 1994, only to extinguish instantaneously. People v $ 31,000 in United._Stat_es_Currency__(1995, 3rd.Dist) 32 Ca1.App4_th 1442, _3.8__Ca1Rptr 2d_836. The California forfeiture statute is patterned after the federal drug forfeiture statute (Health & Saf.--C-ode, §§ 11470 et seq.; 2_1__U.S_.C._§_881_). For this reason California courts consider federal ecisions on asset forfeiture persuasive authority. People v $ 497,590 United States Currency_(1997,_2n_d Dist)__58 Cal App_4th_14.5,_68 Cal_Rp_tr 2d_185.. To obtain a judgment of forfeiture, the People need not offer evidence of the discovery of significant quantities of narcotics, or even direct evidence of a specific narcotics transaction. Nevertheless, they must offer some evidentiary basis for inferring a link between the seized cash and past or future narcotics activity. It is not enough to offer evidence that the claimant is involved in some type of illegal activity. People v $ 497,590 United_ _States Currency (1-997, 2nd Dist) 58 Cal App 4th__145, 68_Ca_I_Rptr_2d_185. ? 2. Constitutionality Forfeiture Statute, former H & S C § 11610-11629 did not violate the Equal Protection Clause of the Fourteenth Amendment because there was a reasonable basis for the distinction between registered owners and lienholders in former H & S C §§ 11621-11622, as the distinction was not arbitrary or unreasonable and was substantially related to the legitimate purpose of the legislation, namely, suppression of illegal narcotics traffic. People v One 1960 Mercedes Benz Roadster (1963,_l_st_Dist) 211_ Cal App 2d_842, 27_Cal_Rptr 617. Ina proceeding under Health & Saf. Code, § 11470, subd. (g) (forfeiture of residence maintained for drug trafficking) which, as amended effective Jan. 1, 1989, no longer requires as a condition precedent of forfeiture that the defendant actually have been convicted of maintaining a place for trafficking drugs (Health & Saf. Code, § 11366), the trial court's application of the amended statute and consideration of defendant's actions before the amendment took effect did not violate the prohibitions against ex post facto laws (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9), since the forfeiture proceeding was civil in nature. California's forfeiture scheme expresses the Legislature's intent that the scheme be considered civil, and its effect is not so punitive as to negate that intent. Since the statute does not require a criminal conviction or proceeding, there is no question of scienter in the forfeiture action; the conduct giving rise to a forfeiture action is made criminal by another statute (Health & Saf. Code, § 11366), with a separate criminal punishment; and there is a separate procedure for criminal forfeitures (Pen. Code, § 186.2 et seq.). People v Real Property (1992, 4th Dist) 2 Cal App 4th 787, 3 Cal_Rptr 2d 577. http-'�z��.���.lexis.com/research/retrieve') m=a7d8fcb40bf7lcd5c4bl49504866aa 17&displa... 4/11J2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 7of10 Postconviction civil forfeiture proceedings for forfeiture of property connected with narcotics offenses may violate double jeopardy principles (U.S._ Const , 5th Amend.; Cal. Const�. 15). Separate civil and criminal proceedings comport with double jeopardy. The determination of whether a given civil statute constitutes punishment for double jeopardy purposes requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. A defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. Moreover, although a civil fine may violate the prohibition against excessive fines under U,S._Corist.,, 8th_Amend., not all forfeitures are punishment for double jeopardy purposes. The drug forfeiture statutes serve both remedial and punitive purposes. Thus, the test for determining whether double jeopardy applies is not only whether a sanction imposed by a statute is solely remedial, but also whether there is a rational relation between the proportionate value of the proceeds, i.e., the forfeiture, and the harm occasioned by the criminal conduct. People v $ 1,930 United_States u_rrency__(19951_2_n_d Dist)__38_Cal App 4th_834 45 Cal_Rptr_2_d 322, _L An information charging defendant with multiple drug offenses was not subject to dismissal on the basis that forfeiture of the currency found in defendant's residence and on his person was a punishment that barred his subsequent criminal prosecution under the double jeopardy clause (U_S_.__Const., Fifth Amend.). The currency was subject to forfeiture under Health & Saf, Code, § 11470, subd. ----- -- (f), which provides for the forfeiture of moneys involved in the sale or possession for sale of controlled substances. The forfeiture prescribed by the Health and Safety Code is in rem, as distinct from a criminal proceeding that is in personam, and the Legislature intended that such forfeiture statutes are civil rather than penal in nature. In the present case, defendant was unable to overcome the presumption of the forfeiture statutes' civil nature by the clearest proof that a forfeiture under Health & Saf. Code,_ § 11470, subd. (f), is so punitive either in purpose or effect as to render it the equivalent of a criminal proceeding. Moreover, since defendant stipulated that the currency be declared forfeited pursuant to the provisions of Health &.Saf._Code_§ in e 11470 et seq., that stipulation, effect, amounted to his concession that the currency came within one of the categories described in Health_& Saf._Code,-� 11470, subd. (f). Therefore, he could not subsequently assert an innocent purpose or source for the currency. People y_Shannd_oah-(19-96,_1st_D_ist) 49 Cal App 4th.1187_57_C_at Rptr_2d__232-. ? 3. Jurisdictional Issues In proceedings by the district attorney pursuant to Health & Saf. Code, § 1.1470 (prior to its amendment, effective January 1, 1985), seeking forfeiture of money and property seized from defendant on his arrest for possession of controlled substances for sale, the trial court had no jurisdiction to order forfeiture of part of the money and the return of the balance of the money and the property to defendant's attorney under an assignment, where the Franchise Tax Board had filed an order to withhold pursuant to Rev._&_Tax._Cod_e1_§__18817, to satisfy an assessment for personal income taxes. Although the board did not appear at the forfeiture hearing, the order was properly brought to the attention of the court; counsel's oral representations at the forfeiture hearing and the prior hold order were adequate evidence of the order to withhold. Franchise Tax Board v Superior Court (1985, 2nd Dist) 168 Cal App 3d 970, 215 Cal Rptr 36. In a proceeding under Health & Saf. Code, § 11470, subd. (g), providing for the forfeiture of a residence related to a violation of Health & Saf. Code, § 11366 (maintenance of any place for drug trafficking), the trial court had jurisdiction over both the real property and the proceeds from defendant's sale of the residence, even though the forfeiture petition failed to allege that defendant's equity interest in the property, as well as the property itself, was subject to forfeiture. Two months after the petition was filed, the People obtained an order that clearly contemplated the seizure of the sale proceeds, and defendant never objected to the order. Although the People released their lis pendens following the sale, the trial court's jurisdiction over it and the proceeds had vested on the date of defendant's arrest (Health & http:! ',%'W�ti-.lexis.comire�-;earc-b'retrieti-e?_m=a7d8feb40bf7lcd5e4bl49--7,04866aa17&:displa— 411 2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 8 of 10 Saf. Cod_e,__§ 11470, subd. (h)), long before he placed the house on the market or sold it. This conclusion was consistent with the language of Health & Saf. Cod__e�_ 11470, subd. (g) (exemption for "interest" of up to $ 100,000 in family residence). contrary result would impede the sale of forfeitable real property in the conventional real estate market, forcing the People to hold the property until after the forfeiture trial, and then to sell it at a public auction or sale. People v Real Property _(_1992, 4th Dist _2 Cal_App 4th_787, 3__Cal Rptr 2d 577. _ In a forfeiture proceeding, neither the state's disbursement of money seized in a drug investigation, pursuant to the court's order of forfeiture, nor defendant's failure to stay execution of that order, deprived the appellate court of jurisdiction to hear defendant's appeal from the trial court's denial of defendant's motion for relief from a default judgment. The United States Supreme Court has held that, in an in rem forfeiture action, an appellate court is not divested of jurisdiction when the prevailing party has transferred the res from the district, given that the fictions of in rem forfeiture were developed primarily to expand the jurisdictional reach of the courts and to furnish remedies for aggrieved parties, and not to provide the prevailing party with a way of defeating its adversary's claim for redress. Although California courts are not bound by this decision, the decision is persuasive. Further, a lower federal court, a California court, and legal commentators have reached similar conclusions. Thus, as a matter of California law, the appellate court had jurisdiction to hear defendant's appeal. People v $ 8,921 United States _ Currency (1994, 4thDist) 21226,_ 34 Ca _Rptr_2d__210. _Cal App 4th * 4. Other Applications The evidence was insufficient to support a judgment of forfeiture of money found in a search of the claimant's residence, pursuant to Health &Saf._Code, § 11470, subd. (f) (forfeiture of money furnished in exchange for controlled substance). Besides the cash, the search of the home revealed only .34 grams of substance the officer believed to be cocaine and a very small amount of marijuana. Although the apparent discrepancy between recorded deposits in the claimant's account and his reported income might support the inference that the claimant was involved in some kind of illegal activity, there was no evidence to support the conclusion that the illegal activity specifically related to narcotics trafficking, and no evidence linking the cash to a narcotics transaction. There was nothing beyond speculation to support conclusion that the claimant's security concerns (locked gate and guard dogs) related particularly to the protection of drug trafficking activities. Although the officer may have received information from confidential informants concerning the claimant's involvement in narcotics trafficking sufficient to support the issuance of a warrant, that evidence was not relied on in the forfeiture proceedings. People v $ 47,050 (1993, 1st Dist) 17.Ca1 App 1319, 22 Cal Rptr 2d 32. In a civil forfeiture proceeding for forfeiture of property connected with the claimant's possession of cocaine for sale (H_e_alt_h__and_Saf_._Code,_§_11470), adjudicated in 1994 for property seized in 1993, the trial court erred in dismissing the action on the basis that there was no current forfeiture law in effect. Sunset provisions in the statutes governing forfeiture of property related to controlled substances, which appear to result in the expiration of the forfeiture statutes, cannot be interpreted to lead to this result. As the statutes existed before 1989, they provided that they were in effect until Jan. 1, 1989. The statutes were amended including a sunset provision that they were in effect until Jan. 1, 1994, at which time the provisions existing on Dec. 31, 1988, would be in effect as if never amended. Although on their face the amendments appear to eliminate the forfeiture provisions, there is nothing to support the absurd result that the Legislature apparently brought back the 1988 law on Jan. 1, 1994, only to have it instantly repealed by its own terms as of Dec. 31, 1988. Thus, the claimant was subject to the provisions of the forfeiture statute in effect on Dec. 31, 1993. Moreover, the application of this statute did not violate ex post facto provisions. The claimant was subjected to the exact same statutes that were in effect at the time his property was seized and forfeiture proceedings began, and thus he could not claim unfair surprise or vindictive government action. People v $ 1,930 United States Currency (1995, 2nd Dist) 38 http�iiw��-tip,leris.eom.'research/retries e'?_m—a7d8feb40bf71 cd�c4b 149�04866aa 178�.displa... 4 11 '2006 Search - 1 Result - forfeit/p property/p narcotics or drugs Page 9 of 10 Cal_Apo 4th 834, 45 Cal Rptr 2d 322. In forfeiture proceedings under Health_& Saf_Code _ summary judgment on the ground that the People could d not7ely on a'n Out-of-state d moved for indictment as the underlying predicate offense, the trial court properly denied defendant's motion for summary judgment after defendant failed to cooperate with the People's discovery efforts. The People's allegations, on information and belief, that the cash at issue was traceable to a violation of Health & Saf_Code,_§ 11351, was sufficient to meet the requirements of Health_& Saf. Code,, 11470, subd. Code,_§ 11351, as an offense for which forfeiture is proper. It was defendant'safail ure to(f), which enumerates cooperate with discovery that deprived the state of an opportunity to prove its case. Thus, under Code Cv.__Proc,_,_�. 437c, subd. (h), the trial court properly denied defendant's motion in order to allow further discovery to be conducted. Moreover, since the trial court properly denied the motion to permit further discovery, it was not required to resolve defendant's contention that the out-of-state indictment could not constitute an acceptable predicate offense. People v $ 4,503 United States Currencv_(1996�_lst Dish __C_al_App 4th 1743, 57 Cal Rptr 2d 457.- 49 _ Sufficient evidence supported the forfeiture of $ 497,590, seized pursuant to Health & Saf._ Code.-§ 11470, subd. (f), since the stipulated facts established a nexus between the seized funds and a narcotics transaction. Police officers found this money stashed in a house connected to a major drug trafficking and money laundering organization. It was bundled in packages, stuffed into two large garbage bags, and hidden in the attic of a residence. Claimant had paid the occupant of the residence to conceal this cash and a prior stash of cash. The house also contained equipment (a dryer with the internal mechanism removed) drug traffickers typically use to transport and smuggle their proceeds out of the country. Altogether, the circumstantial evidence was more than sufficient. Furthermore, even though evidence that a trained police dog smelled illicit drugs on the money was suspect because of the large amount of drug-contaminated money presently in circulation in the United States, a Positive dog alert is relevant and probative of drug activity when combined with other credible evidence clearly connecting the money to illicit drugs. People v $ 497,590 United_ States_Currency_(1997,_2nd_Dist) 5S_Cal_App_4th_145,, 68_Cal__Rptr_2d _185. In a forfeiture proceeding, the People established probable cause to believe $ 48,715 seized from a pickup truck in which defendant was a passenger was subject to forfeiture (Health__&Saf. Code, §11470, subd. (f)). Probable cause in the forfeiture context is defined as a reasonable ground for belief of guilt, less than prima facie proof but more than mere suspicion. There was an unusually large amount of cash ($ 48,707 in total) hidden in the back of the pickup truck. While defendant told sheriffs he brought the money into the United States from Mexico in order to buy farm equipment, the driver of the truck told a tow truck driver that they wanted to return to Mexico the night the cash was seized. There was no plausible explanation tendered by defendant for the way he su home in Mexico hundreds of miles from the border, nearly 0pposedly accumulated,O n his most of it in small bills. In addition, the driver was on probation for Possession of heron for sale, the currency was bundled with duct tape in a manner known to be used by drug traffickers, and a trained drug dog alerted to five different locations in the pickup truck, including locations other than where the currency was found. People v $ 48,715 United States Currency (1997, 5th Dist) 58 Cal App 4th 1507, 6S Cal Rptr 2d 829. In a civil forfeiture under H & S C § 11470(f), the trial court erred in ordering forfeiture of the entire bank account, where the trial court expressly found only $ 700 of the $ 9,632.50 in the bank account represented proceeds traceable to an exchange for a controlled substance. The trial court awarded the state the entire sum on the theory that once some drug money was commingled with other funds, the other funds became tainted and subject to forfeiture, even though the original drug money could be quantified. Nothing in the California forfeiture scheme or the cases interpreting it suggests the Legislature intended untainted assets (whether belonging to a third person or person involved in drug activity) to be subject to forfeiture simply because they were in proximity with forfeitable assets. Carried to its logical extreme, such a theory would eliminate the need for tracing, despite the statute's clear language requiring it. The statute authorizes forfeiture only of proceeds traceable to an leis.corn research'retric�-e';'_m=a7d3fcb4 Obt71cd-�c4bl 49>04866aal7&displa_.. 4/11 2006 e; I of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. ***THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED*** ***THROUGH 2006 CH. 5,APPROVED 1/30/06 *** HEALTH AND SAFETY CODE DIVISION 10.Uniform Controlled Substances Act CHAPTER 10.Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNIA CODES ARCHIVE DIRECTORY Cal Health &Saf Code,prec§ 11570(2006) Preceding § 11570 NOTES: Collateral References: Cal Forms Pl&Practice(Matthew Bender)ch 391 "Nuisance". Cal Real Estate Law&Practice(.1 fatthew Bender)ch 330"The Law of Nuisance". Cal Torts(Matthew Bender) ch 17"Nuisance&Trespass". Cal Points and Authorities(tlatthew Bender)ch 116"Injunctions," ch 167"Nuisance". Bender's Forms of Discovery(tilatthew Bender)vol 7 "Nuisances". Law Review Articles: Code Enforcement: Oakland's Solution to Drug Nuisance Buildings. 1 Land Use Forum 358(CEB,Fall 1992). 2 of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. ***THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** *** THROUGH 2006 CH. 5,APPROVED 1130/06*** HEALTH AND SAFETY CODE DIVISION 10.Uniform Controlled Substances Act CHAPTER 10.Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNIA CODES ARCHIVE DIRECTORY Cal Health &Saf Code§ 11570(2006) § 11570. Buildings or places deemed nuisances subject to abatement Every building or place used for the purpose of unlawfully selling,serving, storing, keeping,manufacturing, or giving away any controlled substance,precursor, or analo-specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated,and prevented, and for which damages may be recovered, whether it is a public or private nuisance. HISTORY: Added Stats 1972 ch 1407 § 3.Amended Stats 1986 ch 590§ 1,ch 1043 § 1.5. NOTES: Former Sections: Former§ 11570,similar to present H&S C§ 11250, was enacted Stats 1939 ch 60, amended Stats 1939 ch 1097 § 13, Stats 1941 ch 1116§ 10. Stats 1945 ch 955 § 34, and repealed Stats 1972 ch 1407 § 2.Amendments: 1986 Amendment: (1) Substituted "manufacturitt9, or giving away any controlled substance,precursor, or analog specified" for"or giv- ing away controlled substances as defined"; (2)substituted "those" for"such" after"upon which"; and(3)added "and for which damages may be recovered,". (As amended Stats 1986 ch 1043, compared to the section as it read prior to 1986. This section was also amended by an earlier chapter, ch 590.See Gov C§ 9605.)Historical Derivation: (a) Former H &.S C§ 11780,as enacted Stats 1939 ch 60, amended Stats 1 st Ex Sess 1940 ch 9 § 42, Stats 1949 ch 1475 § 26. (b)Stats 1925 ch 314 § I-Related Statutes &Rules: Abatement of nuisances by State Department of Health Services:H&S C§§ 100170, 100175. Preventive relief: CC§§ 3420 et seq. Nuisance generally: CC§ ? 3479 et seq. Remedies for public nuisance: CC§§ 3491 et seq. Remedies for private nuisance: CC§§ 3501-3503 Injunctive relief: CCP,' § 5?5 et seq. Action for abatement of nuisance: CCP§ 731. Abatement of public nuisances: Gov C§ 26574. Public nuisance defined: Pen C§ 370-Collateral References: Cal Points & Authorities (. Iatthe%v Bender)ch 16 "Nuisance" Form No. 1S.1. Witkin & Epstein, Criminal Law(2d ed) § 781A. 11 akin Procedure(4th e,z) .-lctions § 19. Cal Health&Saf Code § 11570 Page 3 Witkin Summaty(9th ed) Equity§ 137. Cal Jur 3d(Rev)Criminal Law § 1588. Defending property closures under the Narcotics Nuisance Abatement Act 16 CEB Real Prop L Rep 213. Rutter Cal Prac Guide,Landlord-Tenant§ § 6:79.15 et seq. Attorney General's Opinions: District attorney rather than county counsel deemed proper officer to bring proceedings under Red Light and Liquor Sales Abatement Acts. 8 Ops. Cal. Atry. Gen. 110. Notes of Decisions: In a consolidated small claims action against apartment house owners by 75 plaintiffs who were neighbors of the apartment house, alleging the apartment house was a nuisance because of illegal activity defendants allowed to occur there,the trial court,in the trial de novo,did not err in awarding damages to plaintiffs. The fact that the specific injury plaintiffs suffered was due to the acts of third parties,rather than,for example,being due to noxious gases, was not relevant to the issue of whether the property qualified as a nuisance under Health &Saf. Code,§ 11570.That section does not require that the unlawful activity that makes a building a nuisance be conducted by the owner of the building, a tenant of the building,or a person entering with permission. Although a nuisance and liability therefor may exist with- out negligence, liability in this case was imposed on a theory of active fault on the part of defendants.There was sub- stantial evidence that the property was used in the sale of drugs and the harboring of drug dealers, and that defendants did not take all reasonable measures available to them to control their property. Lew v Superior Court(1993, 1st Dist) 20 Cal App 4th 866, 25 Cal Rptr 2d 42. Health&Saf. Code, § 11570(building involved in drug actixities is nuisance that may be enjoined or abated),re- quires that the owners and operators of any"drug house"be enjoined from continuing to operate such a drug sales facil- ity. People ex rel. Lungren v.Peron (1997, 1st Dist) 59 Cal App 4th 1383, 70 Cal Rptr 2d 20. r ti 3'of23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender R Company,Inc. a member of the LexisNexis Group. All rights reserved. *** THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** *** THROUGH 2006 CH.5,APPROVED 1/3006 *** HEALTH AND SAFETY CODE , DIVISIOti 10.Uniform Controlled Substances Act CHAPTER 10. Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNIA CODES ARCHIVE DIRECTORY Cal Health &Saf Code§ 11571 (2006) § 11571. Action to abate and enjoin nuisance Whenever there is reason to believe that a nuisance as described in Section 11570 is kept,maintained,or exists in any county, the district attorney of the county, or the city attorney of any incorporated city or of any city and county,in the name of the people, may, or any citizen of the state resident in the county,in his or her own name, may maintain an ac- tion to abate and prevent the nuisance and perpetually to enjoin the person conducting or maintaining it, and the owner, lessee, or agent of the building or place in or upon which the nuisance exists from directly or indirectly maintaining or permitting the nuisance. HISTORY: Added Stats 1992 ch 198 § 2(AB 2906), effective July 13, 1992, operative January 1, 1996.Amended Stats 1998 ch 613 § 1 (AB 138=3). Amended Stats 2002 ch 1057 § 1 (AB 1 S6S): Stats 2003 ch 62 § 182(SB 600). -NOTES: Former Sections: Former 11571, similar to the present section, was added Stats 1972 ch 1407 ; 3, amendeStats 197 ch 176 § 2, Stats 1991 ch 572 § 1,ch 1 196 § 7, Stats 1992 ch 19S § 1,effective July 13, 1992, and repealed. operative January 1, 1996,by its own terms. Former§ 1157 1,similar to present H& S C§ 11251,was enacted Stats 1939 ch 60, amended Stats 1941 ch 1116 § 11, and repealed Stats 1972 ch 1407 § 1Amendments: 1998 Amendment: (1) Substituted "a nuisance as described in Section 11570" for"such a nuisance*' near the beginning the former second paragraph which read: "This section shall become operative on January 1, 1996."`' and(_) deleted 2002 Amendment: (1) Deleted "in the name of the people• may," after"attorney of the county,"; and (2) added "in the name of the people, may." before "or any citizen". 2003 Amendment'. Deleted the comma after "building or place"and after"nuisance exists".Historical Derivation: (a) Fot et'H R S C § 1 1X71, as added Stats 1972 ch 140' § 3, amended Stats 1957 eh 1076 § 2, Stats 1991 ch 572 § 1, ch 1196 § 7, Stats 1992 ch 19S § 1. (b) Fomner H S:S C § 11^S 1, as enacted Stats 1919 ch 60. (c) Stats 1925' ch 314 j 2.Related Statutes R Rules: Abatement ofnuisances generally: CCP o 31 et sea.; CC` { 349: et seq. 3501 et seq.Collateral References: I1 Cal Health& Saf Code § 11571 Page 5 Cal Jur 3d(Rev)Criminal Law§ 1588. Notes of Decisions: In an abatement action against a motel under the drug abatement act(H&S C§ 11571),the trial court erred in ruling that a stipulated injunction was binding on bona fide arm's length purchasers. While some remedies under abatement laws are of an in rem character, injunctive relief is not. In addition,in enacting the Uniform Controlled Substances Act and providing for injunctive relief under the drug abatement act,the Legislature used the same language as it used in the Red Light Abatefnent Law,except that it did not include "assignees" in its definition of"person" in § 11571. People ex rel. Gwinn v Kothari(2000, 4th Dist)83 Cal App 4th 759, 100 Cal Rptr 2x129. SUGGESTED FORMS COMPLAINT BY DISTRICT ATTORNEY TO ABATE USE OF_PREMISES AS PLACE FOR UNLAWFUL DISPOSITION OF CONTROLLED SUBSTANCES [Title of Court and Cause] 1. Plaintiff,the people of the State of California,prosecutes this action by and through------,the duly elected,qualified,and acting------[District Attorney or City Attorney] of the County of------, pursuant to the authority conferred on------ [him or her]under Section 11571 of the Health and Safety Code of the State of California. 2. At all times mentioned herein,defendant------ was the owner of record of a certain lot and building located at------ [address], in the City of ------, County of------,State of California. Defendant------ [owner] acquired title to the premises by deed dated------, and recorded on that date in Book------,Page----of the official records of the County of------, State of California.A copy of the deed is attached,marked Exhibit"----" and by reference made part hereof. 3. Plaintiff is informed and believes and thereon alleles that defendant ------ is the lessee of the premises, which------ [he or she] has been using for the purpose of unlawfully------ [selling or storing or keeping or giving away or as the case may be] controlled substances ------and------, thereby maintaining a nuisance subject to abatement under Section 11570 of the Health and Safety Code of the State of California. 4. Plaintiff is informed and believes and thereon alleges that defendant ------ owns the ------ [furniture, fixtures, and movable property or as the case may be ] used in conducting and maintaining such nuisance. 5. On------ [date], ------, employed as a detective by the County of - ----, entered the building and purchased------ [amount] of------ [specify controlled substance] for------ Dollars from defendant------- ------ [His or Her] affidavit setting forth the particulars of the transaction is attached, marked Exhibit"----,"and by reference made part hereof. 6. On------ [date], plaintiff informed defendant------ [owner] that the premises w ere being used as a nuisance as aforesaid. Defendant ------ failed to abate such nuisance. \Vherefore, plaintiff demands judgment as follows: 1. That defendant------ [owner] owns the premises, had knowledge of the unlawful acts herein complained of and failed to abate them, and that defendant ------ [owmer] be permanently enjoined from conducting, maintaining, occupl,in2, or in any w•av permitting the use of the premises for �� It Cal Health& Saf Code § 11571 Page 6 the purpose of selling,storing, keeping, or giving away controlled substances; 2. That defendant------ [lessee] has maintained,used,and occupied the premises for the purpose of------[selling or storing or keeping, or giving away of controlled substances or as the case may be], and has maintained a nuisance therein; and that defendant------ [lessee] be permanently restrained from continuing the nuisance or any unlawful acts on the premises or on any other premises in the State of California; 3.That the grounds,building, and premises herein described be permanently enjoined as a place to conduct,maintain,or continue the nuisance complained of herein; 4. That the court order the Sheriff of the County of----to abate the public nuisance and for that purpose to take possession and close the premises, take possession of all the------ [furniture, fixtures, and movable property] now used in connection with the nuisance, and remove them to a place of safekeeping to await the further order of this court; 5.That on final judgment,the Sheriff of the County of------be ordered to sell the------ [furniture, fixtures, and movable property) in the mariner provided by law,and close the premises against their use for any purpose, and keep them closed for------ [one year] unless sooner released as provided by law; 6. That the costs of this action be taxed against defendants and each of them; and 7. That plaintiff have such further relief as the court may deem proper. Dated: ------ [Signature] •a t 4 of 23 DOCL-MENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. *** THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** ***THROUGH 2006 CH. 5,APPROVED 1/30/06*** HEALTH AND SAFETY CODE DIVISION 10.Uniform Controlled Substances Act CHAPTER 10. Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNIA CODES:ARCHIVE DIRECTORY Cal Health &Saf Code§ 11571.1 (2006) 11571.1. (Repealed January 1, 2010)Unlawful detainer for controlled substance violation (a)To effectuate the purposes of this article,the city prosecutor or city attorney may file, in the name of the people,an action for unlawful detainer against any person who is in violation of the nuisance or illegal purpose provisions of sub- division 4 of Section 1161 of the Code of Civil Procedure,with respect to a controlled substance purpose.In filing this action,which shall be based upon an arrest report or on another action or report by a regulatory or law enforcement agency,the city prosecutor or city attorney shall utilize the procedures set forth in Chapter 4(commencing with Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure, except that in cases filed under this section,the following also shall apply: (1)(A)Prior to filing an action pursuant to this section,the city prosecutor or city attorney shall give 30 calendar days' written notice to the owner, requiring the owner to file an action for the removal of the person who is in violation of the nuisance or illegal purpose provisions of subdivision 4 of Section 1161 of the Code of Civil Procedure with respect to a controlled substance purpose. (B)This notice shall include sufficient documentation establishing a violation of the nuisance or illegal purpose provi- sions of subdivision 4 of Section 1161 of the Code of Civil Procedure and shall be served upon the owner and the tenant in accordance with subdivision(e)of this section. (C)The notice to the tenant shall also include on the bottom of its front page, in at least 14-point bold t)Te, the foi- lov,ing: "Notice to Tenant: This notice is not a notice of eviction. However, you should know that an eviction action may soon be tiled in court against you for suspected drug activity, as described above. You should call(insert name and telephone number of the city attorney or prosecutor pursuing the action)or legal aid to stop the eviction action if any of the fol- low ing is applicable: (i) You are not the person named in this notice. (ii)The person named in the notice does not live with you. (iii)The person named in the notice has permanently moved. (i�l You do not know the person:named in the notice. 1 11 Cal Health S Saf Code § 1 ]571.1 Page 8 (v)You have any other legal defense or legal reason to stop the eviction action. A list of legal assistance providers is attached to this notice.Some provide free legal help if you are eligible." (D)The owner shall, within 30 calendar days of the mailing of the written notice,either provide the city prosecutor or city attorney with all relevant information pertaining to the unlawful detainer case,or provide a written explanation set- ting forth any safety-related reasons for-noncompliance,and an assignment to the city prosecutor or city attorney of the right to bring an unlawful detainer action against the tenant. (E) The assignment shall be on a form provided by the city prosecutor or city attorney and may contain a provision for costs of investigation, discovery, and reasonable attorney's fees, in an amount not to exceed six hundred dollars(S 600). (F) If the city prosecutor or city attorney accepts the assignment of the right of the owner to bring the unlawful de- tainer action,the owner shall retain all other rights and duties,including the handling of the tenant's personal property, following issuance of the writ of possession and its delivery to and execution by the appropriate agency. (2) Upon the failure of the owner to file an action pursuant to this section,or to respond to the city prosecutor or city attorney as provided in paragraph(1),or prosecutor or city having filed an action, if the owner fails to prosecute it diligently and in good faith, the city ty attorney may file and prosecute the action,and join the owner as a defendant in the ac- tion. This action shall have precedence over any similar proceeding thereafter brought by the owner,or to one previ- ously brought by the owner and not prosecuted diligently and in good faith. Service of the summons and complaint upon the defendant owner shall be in accordance with Sections 415.10, 415.20, 415.30, 415.40, and 415.50 of the Code Of Civil Procedure. (3)If a jury or court finds the defendant tenant guilty of unlawful detainer in a case filed pursuant to paragraph(2),the city prosecutor or city attorney may be awarded costs, including the costs of investigation and discovery and reasonable attorney's fees.These costs shall be assessed against the defendant owner, to whom notice was directed pursuant to paragraph(1),and once an abstract of judgment is recorded, it shall constitute a lien on the subject real property. (4) Nothing in this article shall prevent a local governing body from adopting and enforcing laws,consistent with this article,relating to drug abatement. Where local laws duplicate or supplement this article, this article shall be construed as providing alternative remedies and not preempting the field. (5)Nothing in this article shall prevent a tenant from receiving relief against a forfeiture of a lease pursuant to Section 1179 of the Code of Civil Procedure. ` (b)In any proceeding brought under this section,the court may,upon a showing of good cause, issue a partial eviction ordering the removal of any person, including,but not limited to,members of the tenant's household if the court finds that the person has engaged in the activities described in subdivision(a). Persons removed pursuant to this section may be permanently barred from returning to or reentering any portion of the entire premises. The court may her order as an express condition of the tenancy that the remaining tenants shall not give permission to or invite any person who has been removed pursuant to this subdivision to return to or reenter any portion of the entire premises. (c) For the purposes of this section, "controlled substance purpose" means the manufacture, cultivation, importation into the state, transportation, possession,possession for sale,sale, furnishing, administering, or giving away,or provid- ing aplace to use or fortification of a place involving. cocaine, phencyclidine, heroin, methamphetamine,or any other controlled substance, in a violation.of subdivision(a)of Section 11350, Section 11351, 11351.x, 113 2, or 113 9, sub- diyision (a) of Section 1 1360, or Section 1 1366, 11366.6. 1137;, i li 78, 11373.x, 113-9, 11379.x, 352. o6,or 11383, if the offense occurs on the subject real proper-,.-,-and is documented by the observations of a peace officer. (th \osts in to red zi subdivision.(b)of Secnon 68097.2 ofthe Government Code, a public entity may %vaive all or part of the costs incurred in furnis i the testimony of a peace officer in an unlawful detainer action brought pursuant to this section. i .• 11 Page 9 Cal Health&- Saf Code § 11571.1 (e)The notice and documentation described in paragraph(1)of subdivision(a) shall be given in writing and may be given either by personal delivery or by deposit in the United States mail in a sealed envelope,postage prepaid,ad- dressed to the owner at the address known to the public entity giving the notice, or as shown on the last equalized as- sessment roll, if not known. Separate notice of not less than 30 calendar days and documentation shall be provided to the tenant in accordance with this subdivision. Service by mail shall be deemed to be completed at the time of deposit in the United States mail.Proof of giving the notice may be made by a declaration signed under penalty of perjury by any employee of the public entity which shows service in conformity with this section. (f)This section shall only apply to the following courts: (1)In the County of Los Angeles, any court having jurisdiction over unlawful detainer cases involving real property situated in the City of Los Angeles or in the City of Long Beach. (2)In the County of San Diego,any court having jurisdiction over unlawful detainer cases involving real propem situated in the City of San Diego. (3)In the County of Alameda,any court with jurisdiction over unlawful detainer cases involving real property situated in the City of Oakland. (g)(1)The city attorney and city prosecutor of each participating jurisdiction shall provide to the Judicial Council the following information: (A)The number of notices provided pursuant to paragraph(1)of subdivision(a). (B)The number of cases filed by an owner,upon notice. (C)The number of assignments executed by owners to the city attorney or city prosecutor. (D)The number of three-day,30-day,or 60-day notices issued by the city attorney or city prosecutor. (E)The number of cases filed by the city attorney or city prosecutor. (F)The number of times that an owner is joined as a defendant pursuant to this section. (G)As to each case filed by an owner,the city attorney,or the city prosecutor, the following information: (i)The number of judgments ordering an eviction or partial eviction(specify whether default, stipulated, or following trial). (ii)The number of cases, listed by separate categories, in which the case was withdrawn or in which the tenant pre- vailed. (iii)The number of other dispositions (specify disposition). (iv)The number of defendants represented by counsel. (y)Whether the case was a trial by the court or a trial by a jury. (vi) Whether an appeal was taken, and, if so, the result of the appeal. (vii)The number of cases in which partial eviction vas requested, and the number of cases in which the court ordered a partial eviction. (H)As to each case in which a notice was issued, but no case was filed, the following, information: Cal Health&Saf Code § 11571.1 page 10 (i)The number of instances in which a tenant voluntarily vacated the unit. (ii)The number of instances in which a tenant vacated a unit prior to the providing of the notice. (iii)The number of cases in which the notice provided pursuant to subdivision(a)was erroneously sent to the tenant. (List reasons,if known, for the erroneously sent notice,such as reliance on information on the suspected controlled sub- stance law violator's name or address that was incorrect;clerical error; or any other reason) (iv)The number.of other resolutions(specify resolution). (2)(A) Information compiled pursuant to this section shall be reported annually to the Judicial Council on or before 'January 30 of each year. (B)The Judicial Council shall thereafter submit a brief report to the Senate and Assembly Committees on the Judici- ary once on or before April 15,2007, and once on or before April 15,2009,summarizing suant to this section and evaluating the merits of the pilot programs established by this secti1onormation collected pur- (h)This section shall remain in effect only until January 1, 2010, and as of that date is repealed unless a later enacted statute deletes or extends that date. HISTORY: Added Stats 1998 ch 613 § 2 (AB 1384),operative until January 1,2001. Amended Stats 2001 ch 431 § 1 (AB 815),repealed January 1, 2005; Stats 2004 ch 304 § I (AB 2523),repealed January 1,2010; Stats 2005 ch 22 § 118(SB 1 I08), repealed January 1, 2010. NOTES: Amendments: 2001 Amendment: (1) Substituted "action, and join the owner as a defendant" for "action in municipal court, and join the owner as defen- dants" in the first sentence of subd(a)(2); (2)amended subd(c) by adding(a) "11377,"; and(b) , if the offense occurs on the subject real property and is documented by the observations of a peace officer"at the end; (3)substituted subds (f)(1)4f)(5)for former subds(f)(1)-(f)(5) which read: "(1)Los Angeles Judicial District, downtown courthouse. "(2)Los Angeles Judicial District,Van Nuys Branch. (3)Los Cerritos Judicial District. "(4)Southeast Judicial District. "(5)Long Beach Judicial District."; (4)substituted "provide to the Judicial Council" for"maintain records of all ac- tions filed pursuant to this section, including the collection of in the introductory clause of subd(g); (5) amended subd (0(1)by(a)substituting subd(9)(1)(B) for former subd(g)(1)(B)which read: "('B)The number of times that an owner, upon notice, files or fails to file an action following receipt of the notice."; (b) adding subds g g redesignating former subds(g)(1)(C)and(g)(I)(D) to be subds g (-)(I)lCna "b 1 an (c) the city attorney, or the city prosecutor" for"pursuant to this section" in the and on(cclause of subd by an owner, substituting subds(g)(I)(G)(i)-(vi) for the former subds which read: "(i)The final disposition of the action. "(ii) Whether the defendant was represented by counsel. "(iii) Whether the case was a trial by the court or trial by a jun-. Yip') Whether an appeal w•as taken, and, if so, the result of the appeal. "(v) Whether the court ordered a partial eviction.": and(f) adding subd which read: "(2),after judgment is entered in any proceeding brought under this sec ion. the court submit to)the Judicial Council, on a form provided by the Judicial Council, information on the case. That info 7i ation shall in line a brief sununnan'of the facts of the case.,; (7)redesignated former subd(g)(3) to be subd by substituing (a) "Januan 1, 2002, information compiled" (go)(_), (8) amended subd (_)(2) "reported annually to" for °tiled annually with" in the first sentence; and c "Ja ua�'l`s of the f records uaii1,20 ": ( n the second sentence; and(9) substituted "January 1. 2005` O 1, _001" for"J3RUary 1, 2CC1" in 2004 amendment. for"J3illl3r`.' 1, 2002 in subd (h). (1)Added "which shall be based upon an arrest report or on another action or report by a regulatory or law enforce- ment agency." in the last sentence of subd(a): (2)restricn red former suh (a)(1) to be subds (a)(])(A). (a)(I)I;B ar:d [• t1 Cal Health& Saf Code § 11571.1 Page 11 (a)(1)(D)-(a)(1)(F);(3)added subd(a)(1)(C);(4)substituted"city attorney shall give 30-calendar days'written notice" for"city attorney shall give 15 calendar days written notice" in subd(a)(1)(A); (5) substituted"30-calendar days" for"is calendar days" in subd(1)(a)(D); (6)added"of not less than 30-calendar days" in the second sentence of subd(e);(7) substituted subd(f) for former subd(f)which read: "(f)This section shall only apply to the following courts in the County of Los Angeles: (1)"Central District,downtown courthouse. "(2)Northwest District, Van Nuvs branch. "(3)West District,West Los Angeles branch. "(4) Southwest District. "(5) South District,Long Beach.";(8)added"ordering an eviction or partial eviction"in subd(g)(1)(G)(i);(9)added subd(g)(1)(G)(ii); (10)redesignated former subds(g)(1)(G)(ii)-(g)(1)(G)(vi)to be subds(g)(1)(G)(iii)-(g)(1)(G)(vi); (11) added subd(g)(1)(H)(iii); (12)redesignated former subd(g)(1)(H)(iii)to be subd(g)(1)(H)(iv);(13)amended subd (g)(2)by(a) substituting subd designator"(A)" for"Commencing January J,2002,";(b)adding subd designator"(B)"; (c)substituting"once on or before April 15,2007 and once on or before April 15, 2009"for"on or before January 31, 2004" in subd(g)(2)(B); and(14)substituted"January 1,2010" for"January 1, 2005" in subd(h). 2005 Amendment: (1) Substituted"30 calendar days"' for"30-calendar days"'throughout the section;(2)redesignated former subd (g)(1)(G)(vi)to be subd(g)(1)(G)(vii);and(3)substituted"Committees on the Judiciary" for"Judiciary Committees" in subd(g)(2)(B). 5 of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. ***THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** ***THROUGH 2006 CH.5,APPROVED 1/30/06*** HEALTH AND SAFETY CODE DIVISION 10.Uniform Controlled Substances Act CHAPTER 10. Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNIA CODES ARCHIVE DIRECTORY Cal Health &Saf Code§ 11571.5(2006) § 11571.5. Action by city attorney or prosecutor to abate nuisance For purposes of this article, an action to abate a nuisance may be taken by the city attorney or city prosecutor of the city within which the nuisance exists, is kept,or is maintained. An action by a city attorney or city prosecutor shall be accorded the same precedence as an action maintained by the district attorney of the county. HISTORY: Added Stats 1936 ch 182 § 1. NOTES: Related Statutes&Rules: Abatement of nuisances generally: CC§§ 3491 et seq,3501 et seq; CCP§§ 731 et seq. 6 of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. ***THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** *** THROUGH 2006 CH. 5,APPROVED 1/30/06 *** HEALTH AND SAFETY CODE DIVISION 10. Uniform Controlled Substances Act CHAPTER 10.Control of Users of Controlled Substances ARTICLE 3. Abatement GO TO CALIFORNIA CODES ARCHIVE DIRECTORY Cal Health &Saf Code§ 11.172(2006) § 11572. Verification of complaint Unless filed by the district attorney,or the city attorney of an incorporated city, the complaint in the action shall be verified. HISTORY: Added Stats 1972 ch 1307 § 3. Amended Stats 1937 ch 1076§ 3. NOTES: Former Sections: Former§ 11572, similar to present H&-S C§ 11252,was enacted Stats 1939 ch 60,amended Stats 1945 ch 955 § 35 and repealed Stats 1972 ch 1407 § 2.Amendments: 1987 Amendment: Added "or the city attorney of an incorporated city,".Historical Derivation: rn (a)Foter H &S C § 1 17S2,as enacted Mats 1939 eh 60. (b)Stats 1925 ch 314 § 3.Related Statutes & Rules: Form of verification: CCP§ 446. Verification of complaint see;cing preliminary injunction: CCP§ 5'7(a). 7 of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company, Inc. a member of the LexisNexis Group. All rights reserved. ***THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** ***THROUGH 2006 CH. 5,APPROVED 1130/06 *** HEALTH AND SAFETY CODE DIVISION 10. Uniform Controlled Substances Act r CHAPTER 10. Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORI L-k CODES ARCHIVE DIRECTORY Cal Health &Saf Code§ 11573(2006) § 11573. Temporary restraining order or injunction (a) If the existence of the nuisance is shown in the action to the satisfaction of the court or judge,either by verified complaint or affidavit, the court or judge shall allow a temporary restraining order or injunction to abate and prevent the continuance or recurrence of the nuisance. (b)A temporary restraining order or injunction may enjoin subsequent owners, commercial lessees,or agents who acquire the building or place where the nuisance exists with notice of the temporary restraining order or injunction, specifying that the owner of the property subject to the temporary restraining order or injunction shall notify an pro- spective purchaser, commercial lessee, or other successor in interest of the existence of the order or injunction,and of its application to successors in interest,prior to entering into any agreement to sell or lease the property. The temporary restrainino order or injunction shall not constitute a title defect, lien, or encumbrance on the real property. HISTORY: Added Stats 1972 ch 1407 § Amended Stats 2002 ch 1057 § 2 (AB 1568). NOTES: Former Sections: Former§ 11573,similar to present H&S C§ 11253. was enacted Stats 1939 ch 60 and repealed Stats 1972 ch 1407 § 2.Amendments: 2002 Amendment: (1) Designated the former section to be subd (a): (2) substituted "resi ainin-order or" for "wTit of in subd(a): and 3 added subd(b).Historical Derivation: ( ) (a) Former H R S C § 1 I 7S_'. as enacted Stats 1939 ch 60. (b) Stats 1925 ch 311 § 3.Related Statutes& Rules: Preliminary injunction: CCP;; i?; 8 of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. *** THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** ***THROUGH 2006 CH. 5,APPROVED 1/30/06*** HEALTH AND SAFETY CORE DIVISION 10.Uniform Controlled Substances Act CHAPTER 10. Control of Users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNIA CODES ARCHIVE DIRECTORY Cal Health&Saf Code 3' 11573.5(2006) 11573.5. Protection of witnesses;Closure of premises;Relocation assistance (a)At the time of application for issuance of a temporary restraining order or injunction pursuant to Section 11573,if proof of the existence of the nuisance depends,in whole or part,upon the affidavits of witnesses who are not peace offi- cers,upon a showing of prior threats of violence or acts of violence by any defendant or other person,the court may issue orders to protect those witnesses, including,but not limited to,nondisclosure of the name, address,or any other information which may identify those witnesses. (b)A temporary restraining order or injunction issued pursuant to Section 11573 may include closure of the premises pending trial when a prior order or injunction does not result in the abatement of the nuisance. The duration of the order or injunction shall be within the court's discretion.In no event shall the total period of closure pending trial exceed one year. Prior to ruling on a request for closure the court may order that some or all of the rent payments owing to the de- fendant be placed in an escrow account for a period of up to 90 days or until the nuisance is abated. If the court subse- quently orders a closure of the premises,the money in the escrow account shall be used to pay for relocation assistance pursuant to subdivision(d). In ruling upon a request for closure,whether for a defined or undefined duration,the court shall consider all of the following factors: (1)The extent and duration of the nuisance at the time of the request. (2)Prior efforts by the defendant to comply with previous court orders to abate the nuisance. (3)The nature and extent of any effect which the nuisance has upon other persons, such as residents or businesses. (4)Any effect of prior orders placing displaced residents'or occupants' rent payments into an escrow account upon the defendant's efforts to abate the nuisance. (5)The effect of granting the request upon any resident or occupant of the premises who is not named in the action, including the availability of altemative housing or relocation assistance, the pendency of any action to evict a resident or occupant, and any evidence of participation by a resident or occupant in the nuisance activity. (c) In making an order of closure pursuant to this section, the court may order the premises vacated and may issue any other orders necessary to effectuate the closure. However, all tenants who may be affected by the order shall be pro- vided reasonable notice and an opportunity to be heard at all hearings regarding the closure request prior to the issuance of anv order. ` Cal Health&. Saf Code § 11573.5 Page 16 (d)In making an order of closure pursuant to this section, the court shall order the defendant to provide relocation assistance to any tenant ordered to vacate the premises,provided the court determines that the tenant was not actively involved in the nuisance activity. The relocation assistance ordered to be paid by the defendant shall be in the amount necessary to cover moving costs,security deposits for utilities and comparable housing, adjustment in any lost rent,and any other reasonable expenses the court may deem fair and reasonable as a result of the court's order. (e) At the hearing to order closure pursuant to this section,the court may make the following orders with respect to any displaced tenant not actively involved in the nuisance: (1)Priority for senior citizens,physically handicapped persons,or persons otherwise suffering from a permanent or temporary disability for claims against money for relocation assistance. (2)Order the local agency seeking closure pursuant to this section to make reasonable attempts to seek additional sources of funds for relocation assistance to displaced tenants,if deemed necessary. (3)Appoint a receiver to oversee the disbursement of relocation assistance funds, whose services shall be paid from the escrow fund. (4)Where a defendant has paid relocation assistance pursuant to subdivision(d), the escrow account under subdivi- sion(b)may be released to the defendant and no appointment under paragraph(3) shall be made. (f)(1)The remedies set forth pursuant to this section shall be in addition to any other existing remedies for nuisance abatement actions, including,but not limited to,the following: (A) Capital improvements to the property,such as security gates. (B) Improved interior or exterior lighting. (C)Security guards. (D)Posting of signs. (E)Owner membership in neighborhood or local merchants'associations. (F)Attending property management training programs. (G) Making cosmetic improvements to the property. (H) Requiring the owner or person in control of the property to reside in the property until the nuisance is abated. The order shall specify the number of hours per day or per week the owner or person in control of the property must be physically present in the propertv. In determining this amount, the court shall consider the nature and severity of the nuisance. (2) At all stages of an action brought pursuant to this article, the court has equitable powers to order steps necessary to remedy the problem and enhance the abatement process. HISTORY": Added Stars 19SS ch 1525 § 1. Amended Stars 1959 ch 1360 § 90, Stars 1991 ch 247 § 1 (AB 666). Amended Stars 2001 ch S54 § 10(SB 205). Amended Stars 2002 ch 1057 § 3 (AB IS6S) NOTES: Amendments: 1959 amendment: I 9 of 23 DOCUMENTS DEERING'S CALIFORNIA CODES ANNOTATED Copyright(c)2005 by Matthew Bender&Company,Inc. a member of the LexisNexis Group. All rights reserved. ***THIS DOCUMENT REFLECTS ALL URGENCY LEGISLATION ENACTED *** ***THROUGH 2006 CH.5,APPROVED 1130'06 *** HEALTH AND SAFETY CODE DIVISION 10. Uniform Controlled Substances Act CHAPTER 10.Control of users of Controlled Substances ARTICLE 3.Abatement GO TO CALIFORNLk CODES ARCHIVE DIRECTORY Cal Health &-Saf Code� 11574(2006) § 11574. Undertaking by applicant for injunction On granting the temporary writ the court or judge shall require an undertaking on the part of the applicant to the effect that the applicant will pay to the defendant enjoined such damages, not exceeding an amount to be specified,as the de- fendant sustains by reason of the injunction if the court fi tion. nally decides that the applicant was not entitled to the injunc- HISTORY: Added Stats 1972 ch 1407 § 3.Amended Stats 19S2 ch 517 § 275, NOTES: Former Sections: Former§ 11574, amend §relating to copies of orders, contracts and agreements,to be forwarded to division, was enacted 1939 ch 60, amended Stats 19.35 ch 955 § 36,and repealed Stats 1972 ch 1407 2., Slats 1952 Amendment: 5 ments: (1) Deleted"Except when it is granted or application of the people of the state," at the beginning of the section; (2) substituted "an" for"a written" after"shall require";(3)substituted "to the effect that the applicant" for" with sufficient sureties, to the effect that he": and (4)substituted "the injunction" for"tt" after the end of the section.Historical Deriva- tion: (a)Former H&S C § 117S4, as enacted Stats 19_9 ch 60. (b) Stats 1925 ch 314 § 3.0t3icial Comment: LAW REVISION. C0�1)4ISSION CO.kl\IENT: 1982-Section 11574 is amended to delete provisions duplicated in the Bond and Undertaking Proc. Y 995.220(undertakinJ not required of public emit}), 99 ._ 10 `sureties on undertaking ;.,2 Law. See Code Cfr. undertaking).Related Statutes �� Rules: , , ! �), 99_ ' 0(contents of Undertaking on grant of injection: CCP i29. STREETS DIVISION —WORK SCHEDULE WEEK OF MAY 1, 2006 — MAY 5, 2006 Continue preparation of streets for resurfacing in the area west of River Boulevard, south of Panorama Drive. Street reconstruction project (CDBG FUNDED) in the area east of Old Stine Road, north of Wilson Road. Constructing a turn pocket on Rosedale Highway, east of Calloway Drive. Assist the railroad company in repairing the railroad crossing on Baker Street between Jackson Street and Sumner Street. NOTE: Due to weather conditions and asphalt plant breakdown, we have experienced de lays on resurfacing/reconstruction projects. AREA SWEEPING SCHEDULE Monday, May 1 2006 Area between Brooks Street & Watts Drive from Madison Avenue to Hale Street Tuesday, May 2 2006 Area between Oak Street & "F" Street from 24th Street to 16th Street Wednesday, May 3 2006 Area between Akers Road & Wible Road from Planz Road to White Lane Thursday, May 4 2006 Area between Ashe Road & New Stine Road from Stockdale Highway to Sundale Avenue. Friday May 5, 2006, Sweeper Operators are on their regular sweeping routes. C:\DOCUME-1\rsmiley\LOCALS-1\Temp\Work Schedule-Week of May 1_2006.doc