Senate BillNo. 762

16

21647.  

(a) begin deleteWhenever any end deletebegin insertIf a end insertpeace officer has probable cause
17to believe that property, except coins, monetized bullion, or
18“commercial grade ingots” as defined in subdivision (d) of Section
1921627, in the possession of a licensed pawnbroker or secondhand
20dealer isbegin insert lost,end insert stolen,begin insert or embezzled, end insert the peace officerbegin delete shallend deletebegin insert mayend insert
21 place a hold on the property for a period not to exceed 90 days.
22When a peace officer places a hold on the property, the peace
23officer shall give the licensed pawnbroker or secondhand dealer
24a written notice at the time the hold is placed, describing the item
25or items to be held. During that period thebegin insert peace officer may takeend insert
26begin insert custody ofend insertbegin insert the property as evidence or leave it with the licensed
27pawnbroker or secondhand dealer. If the peace officer placing the
28hold leaves the item with the end insert licensed pawnbroker or secondhand
29dealerbegin insert, that pawnbroker or secondhand dealer end insert shall not release
30or dispose of the property, except pursuant to a court order or upon
31receipt of a written authorization signed by any peace officer who
32is a member of the law enforcement agency of which the peace
33officer placing the hold on the property is a member. A licensed
34pawnbroker or secondhand dealerbegin delete shallend deletebegin insert isend insert notbegin delete beend delete subject to civil
35liability for compliance with this section.

36(b) (1) Whenever property that is in the possession of a licensed
37pawnbroker or secondhand dealer, and that has been placed on
38hold pursuant to this section, is required by a peace officer in a
39criminal investigation, the licensed pawnbroker or secondhand
40dealer, upon reasonable notice, shall produce the property at
P10   1reasonable times and places or may deliver the property to the
2peace officer upon the request of any peace officer.

3(2) If property placed on hold pursuant to this section is
4physically surrendered or delivered tobegin insert aend insert law enforcementbegin insert agencyend insert
5 during the period of the hold, the hold and the pawnbroker’s lien
6against the property shall continue. Upon termination of criminal
7proceedings for which the property was placed on hold, the
8property shall be returned to thebegin insert licensedend insert pawnbroker from whom
9it was taken for disposition provided under subdivision (d).

10(c) Whenever a law enforcement agency has knowledge that
11property in the possession of a licensed pawnbroker or secondhand
12dealer has been reported asbegin delete lost or stolen,end deletebegin insert lost, stolen, or embezzled,end insert
13 the law enforcement agency shall, within two business days after
14placing the hold on the property pursuant to this section, notify in
15writing the person who reported the property asbegin delete lost orend deletebegin insert lost,end insert stolenbegin insert,
16 or embezzledend insert of the following:

17(1) The name, address, and telephone number of the licensed
18pawnbroker or secondhand dealer who reported the acquisition of
19the property.

20(2) That the law neither requires nor prohibits payment of a fee
21or any other condition in return for the surrender of the property,
22except that when the person who reported the propertybegin delete lost or
23stolenend deletebegin insert lost, stolen, or embezzledend insert does not choose to participate in
24the prosecution of an identified alleged thief, the person shall pay
25the licensed pawnbroker or secondhand dealer the “out-of-pocket”
26expenses paid in the acquisition of the property in return for the
27surrender of the property.

28(3) That if the person who reported the property as begin delete lost or stolenend delete
29begin insert lost, stolen, or embezzled end insert takes no action to recover the property
30from the licensed pawnbroker or secondhand dealer within 60 days
31of the mailing of the notice, the licensed pawnbroker or secondhand
32dealer may treat the property as other property received in the
33ordinary course of business. During the 60-day notice period, the
34licensed pawnbroker or secondhand dealer may not release the
35property to any other person.

36(4) That a copy of the notice, with the address of the person
37who reported the property as begin delete lost or stolenend delete begin insert lost, stolen, or embezzledend insert
38 deleted, will be mailed to the licensed pawnbroker or secondhand
39dealer who is in possession of the property.

P11   1(d) When property that is in the possession of a licensed
2pawnbroker or secondhand dealer is subject to a hold as provided
3in subdivision (a), and the property is no longer required for the
4purpose of a criminal investigation, the law enforcement agency
5that placed the hold on the property shall release the hold on the
6propertybegin delete. When the law enforcement agency has knowledge that
7the property has been reported lost or stolen, the law enforcement
8agency shall then make notification to the person who reported
9the property as lost or stolen pursuant to subdivision (c)end deletebegin insert and return
10the property to the licensed pawnbroker or secondhand dealer
11from which it was taken if the agency took physical possession of
12the propertyend insert.

13(e) If a pledgor seeks to redeem property that is subject to a
14hold, thebegin insert licensedend insert pawnbroker shall advise the pledgor of the name
15of the peace officer who placed the hold on the property and the
16name of the law enforcement agency of which the officer is a
17member. If the property is not required to be held pursuant to a
18criminal prosecution the hold shall be released.

19(f) Whenever information regarding allegedlybegin delete lost or stolenend deletebegin insert lost,
20stolen, or embezzled end insert property is entered into the Department of
21Justice automated property system or automated firearms system,
22and the property is thereafter identified and found to be in the
23possession of a licensed pawnbroker or secondhand dealer, the
24property shall be placed on a hold pursuant to this section and
25Section 11108.5 of the Penal Code.

26(g) If the hold, including any additional hold, is allowed to lapse,
27or 60 days elapse following the delivery of the notice required to
28be given by subdivision (c)begin delete of this sectionend delete to the person who
29reported the property to bebegin delete lost or stolenend deletebegin insert lost, stolen, or embezzledend insert
30 without a claim being made by that person, whichever is later, the
31 licensed pawnbroker or secondhand dealer may mail under a
32begin delete Certificateend deletebegin insert certificateend insert ofbegin delete Mailingend deletebegin insert mailingend insert issued by the United
33States Post Office, addressed to the law enforcement agency that
34placed the property on hold, a written request to delete the property
35listing from the Department of Justice automated property system
36or automated firearms system, as is applicable. Within 30 days
37after the request has been mailed, the law enforcement agency
38shall either cause the property listing to be deleted as requested or
39place a hold on the property. If no law enforcement agency takes
40any further action with respect to the property within 45 days after
P12   1the mailing of the request, the licensed pawnbroker or secondhand
2dealer may presume that the property listing has been deleted as
3requested and may thereafter deal with the property accordingly,
4and shall not be subject to liability arising from the failure of the
5removal of the property listing from the Department of Justice
6automated property system or automated firearms system.

7(h) A licensed pawnbroker or secondhand dealer shall not refuse
8a request to place property in their possession on hold pursuant to
9this section when a peace officer has probable cause to believe the
10property isbegin delete stolenend deletebegin insert end insertbegin insert lost, stolen, or embezzledend insert. If a licensed
11pawnbroker or secondhand dealer refuses a request to place
12property on hold pursuant to this section, after being provided
13written notice of the provisions of this section, the property may
14be seized with or without a warrant. The peace officer shall issue
15abegin delete receiptend deletebegin insert receipt,end insert as described in Section 21206.7 of the Financial
16Code, left with the licensed pawnbroker or secondhand dealer.
17The property shall be disposed of pursuant to procedures set forth
18in Section 21206.8 of the Financial Code, which shall apply to
19both licensed pawnbrokers and secondhand dealers under this
20section.

21(i) A search warrant shall not be issued for the search of the
22business of a licensed pawnbroker or secondhand dealer, unless
23the application by the peace officer disclosesbegin insert and the court so
24concludes that either (1) the evidence sought to be secured by the
25search warrant is sought for its evidentiary value other than being
26property that is lost, stolen, or embezzled; (2)end insert the peace officer’s
27prior efforts taken to utilize the hold procedures set forth in this
28sectionbegin delete andend delete establishes to thebegin delete issuing magistrate’send deletebegin insert court’send insert
29 satisfaction that the licensed pawnbroker or secondhand dealer has
30refused to voluntarily surrender thebegin delete stolenend deletebegin insert lost, stolen,end insert or embezzled
31begin delete property,end deletebegin insert property;end insert or thatbegin insert (3) end insert there is probable cause to believe
32that thebegin delete stolenend deletebegin insert lost, stolen,end insert or embezzled property is willfully being
33concealed by the licensed pawnbroker or secondhand dealer and
34that any notice required by this section would frustrate the criminal
35investigation of the licensed pawnbroker or secondhand dealer.

36(j) If a civil or criminal court is called upon to adjudicate the
37competing claims of a licensed pawnbroker or secondhand dealer
38and another party claiming ownership or an interest in the property
39that is or was subject to a hold pursuant to this section, the court
P13   1shall award possession of the property only after due consideration
2is given to the effect of Section 2403 of the Commercial Code.

6

21206.8.  

(a) Notwithstanding the provisions of Chapter 12
7(commencing with Section 1407) of Title 10 of Part 2 of the Penal
8Code, whenever property alleged to have been lost, stolen, or
9embezzled is taken from a pawnbroker, the peace officer,
10magistrate, court, clerk, or other person having custody of the
11property shall not deliver the property to any person claiming
12ownership unless the provisions of this section are complied with.

13(b) (1) If any person makes a claim of ownership, the person
14 shall file a written statement, signed under penalty of perjury,
15stating the factual basis upon which they claim ownership or an
16interest in the property with the person having custody of the
17property, and the person having custody of the property shall notify
18the pawnbroker of the claim by providing a true and correct copy
19of the claim to the pawnbroker.

20(2) If the pawnbroker makes no claim with respect to the
21property within 10 days of such notification, the property may be
22disposed of as otherwise provided by law.

23(3) In adjudicating the competing claims of a pawnbroker and
24a person claiming ownership or an interest in the property seized
25from a pawnbroker, thebegin delete magistrate or the person having custody
26of the propertyend deletebegin insert adjudicating courtend insert shall give due consideration to
27the effect Section 2403 of the Commercial Code may have on the
28claims.

29(4) At least 30 calendar days before any hearing adjudicating
30any competing claims of a pawnbroker and a person claiming
31ownership or an interest in the property, the person having custody
32of the property shall deliver to the pawnbroker a true and correct
33copy of the police report substantiating the basis of the seizure of
34the property from the pawnbroker.

35(c) If property alleged to have been stolen or embezzled is taken
36from a pawnbroker, prior to any disposal of the property pursuant
37to Section 1411 of the Penal Code, the notice to be given to the
38owner and owner of a security interest pursuant to Section 1411
39shall be given to the pawnbroker. Such property shall not be
P14   1disposed of pursuant to Section 1411 until three months after such
2notice has been given.

3(d) A pawnbroker shall not be liable to any person for any
4property seized from the pawnbroker on account of the
5pawnbroker’s inability to return the property to that person because
6of the seizure.

8

186.2.  

For purposes of this chapter, the following definitions
9apply:

10(a) “Criminal profiteering activity” means any act committed
11or attempted or any threat made for financial gain or advantage,
12which act or threat may be charged as a crime under any of the
13following sections:

14(1) Arson, as defined in Section 451.

15(2) Bribery, as defined in Sections 67, 67.5, and 68.

16(3) Child pornography or exploitation, as defined in subdivision
17(b) of Section 311.2, or Section 311.3 or 311.4, which may be
18prosecuted as a felony.

19(4) Felonious assault, as defined in Section 245.

20(5) Embezzlement, as defined in Sections 424 and 503.

21(6) Extortion, as defined in Section 518.

22(7) Forgery, as defined in Section 470.

23(8) Gambling, as defined in Sections 337a to 337f, inclusive,
24and Section 337i, except the activities of a person who participates
25solely as an individual bettor.

26(9) Kidnapping, as defined in Section 207.

27(10) Mayhem, as defined in Section 203.

28(11) Murder, as defined in Section 187.

29(12) Pimping and pandering, as defined in Section 266.

30(13) Receiving stolen property, as defined in Section 496.

31(14) Robbery, as defined in Section 211.

32(15) Solicitation of crimes, as defined in Section 653f.

33(16) Grand theft, as defined in Section 487.

34(17) Trafficking in controlled substances, as defined in Sections
3511351, 11352, and 11353 of the Health and Safety Code.

36(18) Violation of the laws governing corporate securities, as
37defined in Section 25541 of the Corporations Code.

38(19) Any of the offenses contained in Chapter 7.5 (commencing
39with Section 311) of Title 9, relating to obscene matter, or in
P15   1Chapter 7.6 (commencing with Section 313) of Title 9, relating to
2harmful matter that may be prosecuted as a felony.

3(20) Presentation of a false or fraudulent claim, as defined in
4Section 550.

5(21) False or fraudulent activities, schemes, or artifices, as
6described in Section 14107 of the Welfare and Institutions Code.

7(22) Money laundering, as defined in Section 186.10.

8(23) Offenses relating to the counterfeit of a registered mark,
9as specified in Section 350.

10(24) Offenses relating to the unauthorized access to computers,
11computer systems, and computer data, as specified in Section 502.

12(25) Conspiracy to commit any of the crimes listed above, as
13defined in Section 182.

14(26) Subdivision (a) of Section 186.22, or a felony subject to
15enhancement as specified in subdivision (b) of Section 186.22.

16(27) Any offenses related to fraud or theft against the state’s
17beverage container recycling program, including, but not limited
18to, those offenses specified in this subdivision and those criminal
19offenses specified in the California Beverage Container Recycling
20and Litter Reduction Act, commencing at Section 14500 of the
21Public Resources Code.

22(28) Human trafficking, as defined in Section 236.1.

23(29) Any crime in which the perpetrator induces, encourages,
24or persuades a person under 18 years of age to engage in a
25commercial sex act. For purposes of this paragraph, a commercial
26sex act means any sexual conduct on account of which anything
27of value is given or received by any person.

28(30) Any crime in which the perpetrator, through force, fear,
29coercion, deceit, violence, duress, menace, or threat of unlawful
30injury to the victim or to another person, causes a person under 18
31years of age to engage in a commercial sex act. For purposes of
32this paragraph, a commercial sex act means any sexual conduct
33on account of which anything of value is given or received by any
34person.

35(31) Theft of personal identifying information, as defined in
36Section 530.5.

37(32) Offenses involving the theft of a motor vehicle, as specified
38in Section 10851 of the Vehicle Code.

39(33) Abduction or procurement by fraudulent inducement for
40 prostitution, as defined in Section 266a.

begin insert

P16   1(34) Buying, selling, trading, accepting for sale on consignment,
2accepting for auctioning, or auctioning secondhand tangible
3personal property as defined by Section 21627 of the Business and
4Professions Code, including, but not limited to, gold, silver,
5platinum, palladium, and jewelry made of gold, silver, platinum,
6palladium, or having any diamond, ruby, emerald, or other
7precious stone, or any item containing sterling or fine silver
8without being licensed pursuant to Section 21640 of the Business
9and Professions Code.

end insert

10(b) (1) “Pattern of criminal profiteering activity” means
11engaging in at least two incidents of criminal profiteering, as
12defined by this chapter, that meet the following requirements:

13(A) Have the same or a similar purpose, result, principals,
14victims, or methods of commission, or are otherwise interrelated
15by distinguishing characteristics.

16(B) Are not isolated events.

17(C) Were committed as a criminal activity of organized crime.

18(2) Acts that would constitute a “pattern of criminal profiteering
19activity” may not be used by a prosecuting agency to seek the
20remedies provided by this chapter unless the underlying offense
21occurred after the effective date of this chapter and the prior act
22occurred within 10 years, excluding any period of imprisonment,
23of the commission of the underlying offense. A prior act may not
24be used by a prosecuting agency to seek remedies provided by this
25chapter if a prosecution for that act resulted in an acquittal.

26(c) “Prosecuting agency” means the Attorney General or the
27district attorney of any county.

28(d) “Organized crime” means crime that is of a conspiratorial
29nature and that is either of an organized nature and seeks to supply
30illegal goods and services such as narcotics, prostitution,
31loan-sharking, gambling, and pornography, or that, through
32planning and coordination of individual efforts, seeks to conduct
33the illegal activities of arson for profit, hijacking, insurance fraud,
34smuggling, operating vehicle theft rings, fraud against the beverage
35container recycling program, or systematically encumbering the
36assets of a business for the purpose of defrauding creditors.
37“Organized crime” also means crime committed by a criminal
38street gang, as defined in subdivision (f) of Section 186.22.
39“Organized crime” also means false or fraudulent activities,
40schemes, or artifices, as described in Section 14107 of the Welfare
P17   1and Institutions Code, and the theft of personal identifying
2information, as defined in Section 530.5.begin insert “Organized crime” also
3means the violation of Section 21640 of the Business and
4Professions Code while not reporting acquisitions of secondhand
5property as required by Section 21628 of the Business and
6Professions Code.end insert

7(e) “Underlying offense” means an offense enumerated in
8subdivision (a) for which the defendant is being prosecuted.

10

186.8.  

Notwithstanding that no response or claim has been
11filed pursuant to Section 186.5, in all cases where property is
12forfeited pursuant to this chapter and, if necessary, sold by the
13Department of General Services or local governmental entity, the
14money forfeited or the proceeds of sale shall be distributed by the
15state or local governmental entity as follows:

16(a) To the bona fide or innocent purchaser, conditional sales
17vendor, or holder of a valid lien, mortgage, or security interest, if
18any, up to the amount of his or her interest in the property or
19proceeds, when the court declaring the forfeiture orders a
20distribution to that person. The court shall endeavor to discover
21all those lienholders and protect their interests and may, at its
22discretion, order the proceeds placed in escrow for up to an
23additional 60 days to ensure that all valid claims are received and
24processed.

25(b) To the Department of General Services or local governmental
26entity for all expenditures made or incurred by it in connection
27with the sale of the property, including expenditures for any
28necessary repairs, storage, or transportation of any property seized
29under this chapter.

30(c) To the General Fund of the state or a general fund of a local
31governmental entity, whichever prosecutes.

32(d) In any case involving a violation of subdivision (b) of
33Section 311.2, or Section 311.3 or 311.4, in lieu of the distribution
34of the proceeds provided for by subdivisions (b) and (c), the
35proceeds shall be deposited in the county children’s trust fund,
36established pursuant to Section 18966 of the Welfare and
37Institutions Code, of the county that filed the petition of forfeiture.
38If the county does not have a children’s trust fund, the funds shall
39be deposited in the State Children’s Trust Fund, established
40pursuant to Section 18969 of the Welfare and Institutions Code.

P18   1(e) In any case involving crimes against the state beverage
2container recycling program, in lieu of the distribution of proceeds
3provided in subdivision (c), the proceeds shall be deposited in the
4penalty account established pursuant to subdivision (d) of Section
514580 of the Public Resources Code, except that a portion of the
6proceeds equivalent to the cost of prosecution in the case shall be
7distributed to the local prosecuting entity that filed the petition of
8forfeiture.

9(f) (1) In any case described in paragraph (29) or (30) of
10subdivision (a) of Section 186.2, or paragraph (33) of subdivision
11(a) of Section 186.2 where the victim is a minor, in lieu of the
12distribution provided for in subdivision (c), the proceeds shall be
13deposited in the Victim-Witness Assistance Fund to be available
14for appropriation to fund child sexual exploitation and child sexual
15abuse victim counseling centers and prevention programs under
16Section 13837. Fifty percent of the funds deposited in the
17Victim-Witness Assistance Fund pursuant to this subdivision shall
18be granted to community-based organizations that serve minor
19victims of human trafficking.

20(2) Notwithstanding paragraph (1), any proceeds specified in
21paragraph (1) that would otherwise be distributed to the General
22Fund of the state under subdivision (c) pursuant to a paragraph in
23subdivision (a) of Section 186.2 other than paragraph (29) or (30)
24of subdivision (a) of Section 186.2, or paragraph (33) of
25subdivision (a) of Section 186.2 where the victim is a minor, shall,
26except as otherwise required by law, continue to be distributed to
27the General Fund of the state as specified in subdivision (c).

begin insert

28(g) In any case described in paragraph (34) of subdivision (a)
29of Section 186.2, in lieu of the distribution provided for in
30subdivision (c), the proceeds shall be distributed in the following
31manner: (1) 45 percent shall be distributed into the general fund
32of the city, county, or city and county that instituted the forfeiture,
33(2) 45 percent shall be distributed to the general fund of the city,
34county, or city and county that prosecuted the forfeiture, and (3)
3510 percent shall be distributed to the Restitution Fund.

end insert

37

1411.  

(a) If the ownership of the property stolen or embezzled
38and the address of the owner, and the address of the owner of a
39security interest therein, can be reasonably ascertained, the peace
40officer who took custody of the property shall notify the owner,
P19   1and a person having a security interest therein, by letter of the
2location of the property and the method by which the owner may
3obtain it. This notice shall be given upon the conviction of a person
4for an offense involving the theft, embezzlement, or possession of
5the property, or if a conviction was not obtained, upon the making
6of a decision by the district attorney not to file the case or upon
7the termination of the proceedings in the case. Except as provided
8in Section 217 of the Welfare and Institutions Code, if the property
9stolen or embezzled is not claimed by the owner before the
10expiration of three months after the giving of this notice, or, in any
11case in which such a notice is not given, before the expiration of
12six months from the conviction of a person for an offense involving
13the theft, embezzlement, or possession of the property, or if a
14conviction was not obtained, then from the time the property came
15into the possession of the peace officer or the case involving the
16person from whom it was obtained is disposed of, whichever is
17later, the magistrate or other officer having it in custody may, on
18the payment of the necessary expenses incurred in its preservation,
19deliver it to the county treasurer or other proper county officer, by
20whom it shall be sold and the proceeds paid into the county
21treasury. However,begin insert notwithstanding any otherend insertbegin insert law,end insert if the person
22from whom custody of the property was taken is a secondhand
23dealer or licensed pawnbroker and reasonable but unsuccessful
24efforts have been made to notify the owner of the property and the
25property is no longer needed for the criminal proceeding, the
26property shall be returned to the secondhand dealer or pawnbroker
27who had custody of the property and be treated as regularly
28acquired property. If the property is transferred to the county
29purchasing agent it may be sold in the manner provided by Article
307 (commencing with Section 25500) of Chapter 5 of Part 2 of
31Division 2 of Title 3 of the Government Code for the sale of surplus
32personal property. If the county officer determines that any of the
33property transferred to him or her for sale is needed for a public
34use, the property may be retained by the county and need not be
35sold. The magistrate or other officer having the property in custody
36may, however, provide for the sale of the property in the manner
37provided for the sale of unclaimed property which has been held
38for at least three months pursuant to Section 2080.4 of the Civil
39Code.

P20   1(b) This section shall not govern the disposition of property
2placed on hold pursuant to Section 21647 of the Business and
3Professions Code, notwithstanding the current custodial status of
4the property, unless the licensed pawnbroker or secondhand dealer,
5after receipt of the written advisement required by subdivision (h)
6of Section 21647 of the Business and Professions Code, willfully
7refuses to consent to a statutory hold as provided by Section 21647
8of the Business and Professions Code or a search warrant for the
9business of the licensed pawnbroker or secondhand dealer has
10resulted in the seizure of the property subject to this section.

12

11108.5.  

(a) If a law enforcement agency identifies serialized
13property or any property reported pursuant to Section 21628 of
14the Business and Professions Code that has been reported lost or
15stolen by the owner or a person entitled to possession of the
16property and the property has been entered into the appropriate
17Department of Justice automated property system pursuant to
18Section 11108, the agency shall notify the owner or person
19claiming to be entitled to possession of the property of the location
20of the property within 15 days of making the identification. If the
21location of the property was reported by a licensed pawnbroker or
22secondhand dealer pursuant to Section 21630 of the Business and
23Professions Code, notwithstanding the method by which the
24property was identified, notice shall be given to the party who
25reported the property lost or stolen pursuant to Section 21647 of
26the Business and Professions Code.

27(b) If the property is in the custody of the law enforcement
28agency and it is determined that the property is no longer required
29for use as evidence in a criminal case, the property shall be made
30available to the person entitled to possession pursuant to Section
311417.5 or if the property was found in the possession of a licensed
32pawnbroker or secondhand dealer, pursuant to Section 21647 of
33the Business and Professions Code.

34(c) Subdivision (a) shall not apply to the return to an owner of
35a lost or stolen vehicle, as defined in Section 670 of the Vehicle
36Codebegin insert if the report of theft or loss of the vehicle into the automated
37property system preceded the report of the acquisition of property
38as set forth in Section 21628 of the Business and Professions Code
39by a licensed pawnbrokerend insert.