BILL NUMBER: SB 762 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 4, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Hill
FEBRUARY 22, 2013
An act to amend Section 21647 of the Business and Professions
Code, to amend Section 21206.8 of the Financial Code, and to amend
Sections 186.2, 186.8, 1411, and 11108.5 of the Penal Code, relating
to secondhand goods, and making an appropriation therefor.
goods.
LEGISLATIVE COUNSEL'S DIGEST
SB 762, as amended, Hill. Secondhand goods: lost, stolen, or
embezzled items.
(1) Existing law provides for the regulation of secondhand
dealers, as defined, and makes it unlawful for a person to engage in
the business of a secondhand dealer without a license issued by the
chief of police, the sheriff, or, where appropriate, the police
commission. Existing law makes it a crime, punishable by specified
fines or imprisonment, or both, if a person knowingly violates the
provisions regulating secondhand dealers. Existing law authorizes the
district attorney or the Attorney General to bring an action to
enjoin a violation or threatened violation of the provisions
regulating secondhand dealers.
This bill would make operating a secondhand business
without being licensed in violation of those licensing
provisions a "criminal profiteering activity" and would
include the unlicensed operation of a secondhand dealer business
without reporting acquisitions as required by existing law
within the definition of "organized crime."
(2) Existing law, the California Control of Profits of Organized
Crime Act, defines criminal profiteering as any act committed or
attempted, or any threat made for financial gain or advantage, that
may be charged as a crime under specified provisions. Under existing
law, property and assets acquired or received in exchange for the
proceeds immediately derived from the pattern of criminal
profiteering activity are subject to forfeit. The money proceeds from
that forfeiture are distributed as prescribed.
This bill would prescribe that funds derived from a forfeiture of
lost, stolen, or embezzled items seized from a pawnbroker or
secondhand dealer be distributed 45% to initiating law
enforcement agency, 45% to prosecuting attorney's office, and 10% to
the Restitution Fund, a continuously appropriated fund, thereby
making an appropriation 50% to the general fund of the
city, county, or city and county that instituted the forfeiture and
50% to the general fund of the city, county, or city and county that
prosecuted the forfeiture .
(3) Existing law authorizes a peace officer to place a 90-day
hold on property in possession of a pawnbroker, secondhand
dealer, or coin dealer if the peace officer has probable cause to
believe that property is stolen, as specified, and regulates the
manner in which the property is placed on hold, persons claiming the
property are notified, and disputes arising out of claims for the
property are adjudicated, as provided.
This bill would revise these provisions to, among other things,
authorize a peace officer to also place a hold on property that the
officer has probable cause to believe is lost or embezzled
or to seize the property, as specified, limit the
embezzled. The bill would limit these provisions to licensed
pawnbrokers and secondhand dealers, dealers
and would revise notification procedures regarding lost,
stolen, or embezzled property, and property.
The bill would permit the law enforcement agency to extend the hold
beyond 90 days, as specified, until the conclusion of the criminal
proceedings. The bill would authorize a peace officer to take
physical possession of property as evidence if the property is placed
on hold. The bill would provide that if a search warrant is issued
for the search of the business of a licensed pawnbroker or secondhand
dealer to secure lost, stolen, or embezzled property, the hold would
continue as long as the property is subject to the jurisdiction of
the court. The bill would also require a person claiming
ownership of the property to file a written statement, signed under
penalty of perjury, stating the factual basis upon which they claim
ownership or an interest in the property. This bill would require law
enforcement to return seized property that
it has taken physical possession of at the conclusion of the
criminal proceedings. This bill would also authorize the
issuance of a search warrant in specified circumstances, including
where the property is being concealed by a pawnbroker who is the
subject of a criminal investigation or if a pawnbroker or secondhand
dealer refuses to honor the hold upon request of a peace officer.
(4) Because a knowing violation of the bill's provisions by a
person engaging in the business of a secondhand dealer would be a
crime, and because the bill would expand the crime of perjury, the
bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes no
. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 21647 of the Business and Professions Code is
amended to read:
21647. (a) (1) If a peace officer has
probable cause to believe that property, except coins, monetized
bullion, or "commercial grade ingots" as defined in subdivision (d)
of Section 21627, in the possession of a licensed pawnbroker or
secondhand dealer is lost, stolen, or embezzled, the peace officer
may place a hold on the property for a period not to exceed 90 days.
When a peace officer places a hold on the property, the
peace officer shall give the licensed pawnbroker or secondhand dealer
a written notice at the time the hold is placed, describing the item
or items to be held. During that period the peace officer may take
custody of the property as evidence or leave it with the licensed
pawnbroker or secondhand dealer. If the peace officer placing the
hold leaves the item with the licensed pawnbroker or secondhand
dealer, that pawnbroker or secondhand dealer shall not release or
dispose of the property, except pursuant to a court order or upon
receipt of a written authorization signed by any peace officer who is
a member of the law enforcement agency of which the peace officer
placing the hold on the property is a member. A licensed pawnbroker
or secondhand dealer is not subject to civil liability for compliance
with this section.
(2) A 90-day hold issued pursuant to this section:
(A) Is created upon the receipt by a licensed pawnbroker or
secondhand dealer of a written notice by a peace officer that
contains the following:
(i) An accurate description of the property being placed on the
90-day hold.
(ii) An acknowledgment that the property is being placed on hold
pursuant to this section and denoting whether physical possession
will remain with the licensed pawnbroker or secondhand dealer or will
be taken by the law enforcement agency instituting the 90-day hold.
(iii) The law enforcement agency's police report or department
record number, if issued, for which the property is needed as
evidence.
(iv) The date the notice was delivered to the licensed pawnbroker
or secondhand dealer that shall initiate the notification period set
forth in subdivisions (c) and (g).
(B) Will not exceed a period of 90 calendar days, but may be
renewed as provided in subparagraph (C).
(C) May be renewed as often as is required for a criminal
investigation or criminal proceeding by any peace officer who is a
member of the same law enforcement agency as the peace officer
placing the hold on the property.
(D) Permits a peace officer to either take physical possession of
the property as evidence, consistent with a peace officer's right to
a plain view seizure for a criminal investigation or criminal
proceeding, or to leave the property in the possession of the
licensed pawnbroker or secondhand dealer as a custodian on behalf of
the law enforcement agency.
(E) Requires the licensed pawnbroker or secondhand dealer to
maintain physical possession of the property placed on hold and
prohibits the property's release or disposal, except pursuant to the
written authorization signed by a peace officer who is a member of
the same law enforcement agency as the peace officer placing the hold
on the property.
(F) Terminates when the property is no longer needed as evidence
in a criminal investigation or criminal proceeding, at which time the
property shall be disposed of pursuant to subdivision (d).
(G) Shall not be applicable to secure lost, stolen, or embezzled
property found in the possession of an unlicensed pawnbroker or
secondhand dealer that has not duly and correctly reported the
acquisition pursuant to Section 21628. In such a circumstance, a
peace officer, having probable cause to believe the property found in
the possession of an unlicensed pawnbroker or secondhand dealer is
lost, stolen, or embezzled, may seize the item or items consistent
with the authority granted the peace officer under the Penal Code or
any other law.
(b) (1) Whenever property that is in the possession of a licensed
pawnbroker or secondhand dealer, and that has been placed on hold
pursuant to this section, is required by a peace officer in a
criminal investigation, the licensed pawnbroker or secondhand dealer,
upon reasonable notice, shall produce the property at reasonable
times and places or may deliver the property to the peace officer
upon the request of any peace officer.
(2) If property placed on hold pursuant to this section is
physically surrendered or delivered to a law enforcement agency
during the period of the hold, the hold and the pawnbroker's lien
against the property shall continue. Upon termination of
criminal proceedings for which the property was placed on hold, the
property shall be returned to the licensed pawnbroker from whom it
was taken for disposition provided under subdivision (d).
(c) Whenever a law enforcement agency has knowledge that property
in the possession of a licensed pawnbroker or secondhand dealer has
been reported as lost, stolen, or embezzled, the law enforcement
agency shall, within two business days after placing the hold on the
property pursuant to this section, notify in writing the person who
reported the property as lost, stolen, or embezzled of the following:
(1) The name, address, and telephone number of the licensed
pawnbroker or secondhand dealer who reported the acquisition of the
property.
(2) That the law neither requires nor prohibits payment of a fee
or any other condition in return for the surrender of the property,
except that when the person who reported the property lost, stolen,
or embezzled does not choose to participate in the prosecution of an
identified alleged thief, the person shall pay the licensed
pawnbroker or secondhand dealer the "out-of-pocket" expenses paid in
the acquisition of the property in return for the surrender of the
property.
(3) That if the person who reported the property as lost, stolen,
or embezzled takes no action to recover the property from the
licensed pawnbroker or secondhand dealer within 60 days of the
mailing of the notice, the licensed pawnbroker or secondhand dealer
may treat the property as other property received in the ordinary
course of business. During the 60-day notice period, the licensed
pawnbroker or secondhand dealer may not release the property to any
other person.
(4) That a copy of the notice, with the address of the person who
reported the property as lost, stolen, or embezzled deleted, will be
mailed to the licensed pawnbroker or secondhand dealer who is in
possession of the property.
(d) When property that is in the possession of a licensed
pawnbroker or secondhand dealer is subject to a hold as provided in
subdivision (a), and the property is no longer required for the
purpose of a criminal investigation or criminal proceeding
, the law enforcement agency that placed the hold on the property
shall release the hold on the property and return the property to the
licensed pawnbroker or secondhand dealer from which it was taken if
the law enforcement agency took physical possession of the
property.
(e) If a pledgor seeks to redeem property that is subject to a
hold, the licensed pawnbroker shall advise the pledgor of the name of
the peace officer who placed the hold on the property and the name
of the law enforcement agency of which the officer is a member. If
the property is not required to be held pursuant to a criminal
prosecution the hold shall be released.
(f) Whenever information regarding allegedly lost, stolen, or
embezzled property is entered into the Department of Justice
automated property system or automated firearms system, and the
property is thereafter identified and found to be in the possession
of a licensed pawnbroker or secondhand dealer, the property shall be
placed on a hold pursuant to this section and Section 11108.5 of the
Penal Code.
(g) If the hold, including any additional hold, is allowed to
lapse, or 60 days elapse following the delivery of the notice
required to be given by subdivision (c) to the person who reported
the property to be lost, stolen, or embezzled without a claim being
made by that person, whichever is later, the licensed pawnbroker or
secondhand dealer may mail under a certificate of mailing issued by
the United States Post Office, addressed to the law enforcement
agency that placed the property on hold, a written request to delete
the property listing from the Department of Justice automated
property system or automated firearms system, as is applicable.
Within 30 days after the request has been mailed, the law enforcement
agency shall either cause the property listing to be deleted as
requested or place a hold on the property. If no law enforcement
agency takes any further action with respect to the property within
45 days after the mailing of the request, the licensed pawnbroker or
secondhand dealer may presume that the property listing has been
deleted as requested and may thereafter deal with the property
accordingly, and shall not be subject to liability arising from the
failure of the removal of the property listing from the Department of
Justice automated property system or automated firearms system.
(h) A licensed pawnbroker or secondhand dealer shall not refuse a
request to place property in their possession on hold pursuant to
this section when a peace officer has probable cause to believe the
property is lost, stolen, or embezzled. If a licensed pawnbroker or
secondhand dealer refuses a request to place property on hold
pursuant to this section, after being provided written
notice of the provisions of this section, the property may
be seized with or without a warrant. The peace officer shall issue a
receipt, as described in Section 21206.7 of the Financial Code, left
with the licensed pawnbroker or secondhand dealer. The property shall
be disposed of pursuant to procedures set forth in Section 21206.8
of the Financial Code, which shall apply to both licensed pawnbrokers
and secondhand dealers under this section.
(i) A If a search warrant
shall not be is issued for the search of the
business of a licensed pawnbroker or secondhand dealer,
unless the application by the peace officer discloses and the court
so concludes that either (1) the evidence sought to be secured by the
search warrant is sought for its evidentiary value other than being
property that is lost, stolen, or embezzled; (2) the peace officer's
prior efforts taken to utilize the hold procedures set forth in this
section establishes to the court's satisfaction that the licensed
pawnbroker or secondhand dealer has refused to voluntarily surrender
the lost, stolen, or embezzled property; or that (3) there is
probable cause to believe that the lost, stolen, or embezzled
property is willfully being concealed by the licensed pawnbroker or
secondhand dealer and that any notice required by this section would
frustrate the criminal investigation of the licensed pawnbroker or
secondhand dealer dealer to secure lost, stolen, or
embezzled property that has been placed on hold, the hold shall
continue for the duration that the property remains subject to the
court's jurisdiction. Notwithstanding any other law, when the use of
the property seized for a criminal investigation or criminal
proceeding has concluded, the property shall be disposed of pursuant
to subdivision (d) .
(j) If a civil or criminal court is called upon to adjudicate the
competing claims of a licensed pawnbroker or secondhand dealer and
another party claiming ownership or an interest in the property that
is or was subject to a hold pursuant to this section, the court shall
award possession of the property only after due consideration is
given to the effect of Section 2403 of the Commercial Code.
(k) A licensed pawnbroker or secondhand dealer is not subject to
civil liability for compliance with this section.
SEC. 2. Section 21206.8 of the Financial Code is amended to read:
21206.8. (a) Notwithstanding the provisions of Chapter 12
(commencing with Section 1407) of Title 10 of Part 2 of the Penal
Code, whenever property alleged to have been lost, stolen, or
embezzled is taken from a pawnbroker, the peace officer, magistrate,
court, clerk, or other person having custody of the property shall
not deliver the property to any person claiming ownership unless the
provisions of this section are complied with.
(b) (1) If any person makes a claim of ownership, the person shall
file a written statement, signed under penalty of perjury, stating
the factual basis upon which they claim ownership or an interest in
the property with the person having custody of the property, and the
person having custody of the property shall notify the pawnbroker of
the claim by providing a true and correct copy of the claim to the
pawnbroker.
(2) If the pawnbroker makes no claim with respect to the property
within 10 days of such notification, the property may be disposed of
as otherwise provided by law.
(3) In adjudicating the competing claims of a pawnbroker and a
person claiming ownership or an interest in the property seized from
a pawnbroker, the adjudicating court shall give due consideration to
the effect Section 2403 of the Commercial Code may have on the
claims.
(4) At least 30 calendar days before any hearing adjudicating any
competing claims of a pawnbroker and a person claiming ownership or
an interest in the property, the person having custody of the
property shall deliver to the pawnbroker a true and correct copy of
the police report , redacted as may be required by law and
consistent with due process of law, substantiating the basis of
the seizure of the property from the pawnbroker.
(c) If property alleged to have been stolen or embezzled is taken
from a pawnbroker, prior to any disposal of the property pursuant to
Section 1411 of the Penal Code, the notice to be given to the owner
and owner of a security interest pursuant to Section 1411 shall be
given to the pawnbroker. Such property shall not be disposed of
pursuant to Section 1411 until three months after such notice has
been given.
(d) A pawnbroker shall not be liable to any person for any
property seized from the pawnbroker on account of the pawnbroker's
inability to return the property to that person because of the
seizure.
SEC. 3. Section 186.2 of the Penal Code is amended to read:
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500
Chapter 1 (commencing with Section 14500) of Division 12.1
of the Public Resources Code.
(28) Human trafficking, as defined in Section 236.1.
(29) Any crime in which the perpetrator induces, encourages, or
persuades a person under 18 years of age to engage in a commercial
sex act. For purposes of this paragraph, a commercial sex act means
any sexual conduct on account of which anything of value is given or
received by any person.
(30) Any crime in which the perpetrator, through force, fear,
coercion, deceit, violence, duress, menace, or threat of unlawful
injury to the victim or to another person, causes a person under 18
years of age to engage in a commercial sex act. For purposes of this
paragraph, a commercial sex act means any sexual conduct on account
of which anything of value is given or received by any person.
(31) Theft of personal identifying information, as defined in
Section 530.5.
(32) Offenses involving the theft of a motor vehicle, as specified
in Section 10851 of the Vehicle Code.
(33) Abduction or procurement by fraudulent inducement for
prostitution, as defined in Section 266a.
(34) Buying, selling, trading, accepting for sale on consignment,
accepting for auctioning, or auctioning secondhand tangible personal
property as defined by Section 21627 of the Business and Professions
Code, including, but not limited to, gold, silver, platinum,
palladium, and jewelry made of gold, silver, platinum, palladium, or
having any diamond, ruby, emerald, or other precious stone, or any
item containing sterling or fine silver without being
licensed pursuant to in violation of Section
21640 of the Business and Professions Code.
(b) (1) "Pattern of criminal profiteering activity" means engaging
in at least two incidents of criminal profiteering, as defined by
this chapter, that meet the following requirements:
(A) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(B) Are not isolated events.
(C) Were committed as a criminal activity of organized crime.
(2) Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution,
loan-sharking, gambling, and pornography, or that, through planning
and coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized crime" also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code, and
the theft of personal identifying information, as defined in Section
530.5. "Organized crime" also means the violation of Section 21640 of
the Business and Professions Code by any person engaged in
business as a secondhand dealer, as defined by Section 21626 of the
Business and Professions Code, while not reporting acquisitions
of secondhand property as required by Section 21628 of the Business
and Professions Code.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 4. Section 186.8 of the Penal Code is amended to read:
186.8. Notwithstanding that no response or claim has been filed
pursuant to Section 186.5, in all cases where property is forfeited
pursuant to this chapter and, if necessary, sold by the Department of
General Services or local governmental entity, the money forfeited
or the proceeds of sale shall be distributed by the state or local
governmental entity as follows:
(a) To the bona fide or innocent purchaser, conditional sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover all
those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to an
additional 60 days to ensure that all valid claims are received and
processed.
(b) To the Department of General Services or local governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for any necessary
repairs, storage, or transportation of any property seized under this
chapter.
(c) To the General Fund of the state or a general fund of a local
governmental entity, whichever prosecutes.
(d) In any case involving a violation of subdivision (b) of
Section 311.2, or Section 311.3 or 311.4, in lieu of the distribution
of the proceeds provided for by subdivisions (b) and (c), the
proceeds shall be deposited in the county children's trust fund,
established pursuant to Section 18966 of the Welfare and Institutions
Code, of the county that filed the petition of forfeiture. If the
county does not have a children's trust fund, the funds shall be
deposited in the State Children's Trust Fund, established pursuant to
Section 18969 of the Welfare and Institutions Code.
(e) In any case involving crimes against the state beverage
container recycling program, in lieu of the distribution of proceeds
provided in subdivision (c), the proceeds shall be deposited in the
penalty account established pursuant to subdivision (d) of Section
14580 of the Public Resources Code, except that a portion of the
proceeds equivalent to the cost of prosecution in the case shall be
distributed to the local prosecuting entity that filed the petition
of forfeiture.
(f) (1) In any case described in paragraph (29) or (30) of
subdivision (a) of Section 186.2, or paragraph (33) of subdivision
(a) of Section 186.2 where the victim is a minor, in lieu of the
distribution provided for in subdivision (c), the proceeds shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs under Section
13837. Fifty percent of the funds deposited in the Victim-Witness
Assistance Fund pursuant to this subdivision shall be granted to
community-based organizations that serve minor victims of human
trafficking.
(2) Notwithstanding paragraph (1), any proceeds specified in
paragraph (1) that would otherwise be distributed to the General Fund
of the state under subdivision (c) pursuant to a paragraph in
subdivision (a) of Section 186.2 other than paragraph (29) or (30) of
subdivision (a) of Section 186.2, or paragraph (33) of subdivision
(a) of Section 186.2 where the victim is a minor, shall, except as
otherwise required by law, continue to be distributed to the General
Fund of the state as specified in subdivision (c).
(g) In any case described in paragraph (34) of subdivision (a) of
Section 186.2, in lieu of the distribution provided for in
subdivision (c), the proceeds shall be distributed in the following
manner: (1) 45 50 percent shall be
distributed into the general fund of the city, county, or city and
county that instituted the forfeiture, (2) 45
and 50 percent shall be distributed to the general fund of the
city, county, or city and county that prosecuted the
forfeiture, and (3) 10 percent shall be distributed to the
Restitution Fund forfeiture .
SEC. 5. Section 1411 of the Penal Code is amended to read:
1411. (a) If the ownership of the property stolen or embezzled
and the address of the owner, and the address of the owner of a
security interest therein, can be reasonably ascertained, the peace
officer who took custody of the property shall notify the owner, and
a person having a
security interest therein, by letter of the location of the property
and the method by which the owner may obtain it. This notice shall be
given upon the conviction of a person for an offense involving the
theft, embezzlement, or possession of the property, or if a
conviction was not obtained, upon the making of a decision by the
district attorney not to file the case or upon the termination of the
proceedings in the case. Except as provided in Section 217 of the
Welfare and Institutions Code, if the property stolen or embezzled is
not claimed by the owner before the expiration of three months after
the giving of this notice, or, in any case in which such a notice is
not given, before the expiration of six months from the conviction
of a person for an offense involving the theft, embezzlement, or
possession of the property, or if a conviction was not obtained, then
from the time the property came into the possession of the peace
officer or the case involving the person from whom it was obtained is
disposed of, whichever is later, the magistrate or other officer
having it in custody may, on the payment of the necessary expenses
incurred in its preservation, deliver it to the county treasurer or
other proper county officer, by whom it shall be sold and the
proceeds paid into the county treasury. However, notwithstanding any
other law, if the person from whom custody of the property was taken
is a secondhand dealer or licensed pawnbroker and reasonable but
unsuccessful efforts have been made to notify the owner of the
property and the property is no longer needed for the criminal
proceeding, the property shall be returned to the secondhand dealer
or pawnbroker who had custody of the property and be treated as
regularly acquired property. If the property is transferred to the
county purchasing agent it may be sold in the manner provided by
Article 7 (commencing with Section 25500) of Chapter 5 of Part 2 of
Division 2 of Title 3 of the Government Code for the sale of surplus
personal property. If the county officer determines that any of the
property transferred to him or her for sale is needed for a public
use, the property may be retained by the county and need not be sold.
The magistrate or other officer having the property in custody may,
however, provide for the sale of the property in the manner provided
for the sale of unclaimed property which has been held for at least
three months pursuant to Section 2080.4 of the Civil Code.
(b) This section shall not govern the disposition of property
placed on hold pursuant to Section 21647 of the Business and
Professions Code, notwithstanding the current custodial status of the
property, unless the licensed pawnbroker or secondhand dealer, after
receipt of the written advisement required by subdivision (h) of
Section 21647 of the Business and Professions Code, willfully refuses
to consent to a statutory hold as provided by Section 21647 of the
Business and Professions Code or a search warrant for the business of
the licensed pawnbroker or secondhand dealer has resulted in the
seizure of the property subject to this section.
SEC. 6. Section 11108.5 of the Penal Code is amended to read:
11108.5. (a) If a law enforcement agency identifies serialized
property or any property reported pursuant to Section 21628 of the
Business and Professions Code that has been reported lost or stolen
by the owner or a person entitled to possession of the property and
the property has been entered into the appropriate Department of
Justice automated property system pursuant to Section 11108, the
agency shall notify the owner or person claiming to be entitled to
possession of the property of the location of the property within 15
days of making the identification. If the location of the property
was reported by a licensed pawnbroker or secondhand dealer pursuant
to Section 21630 of the Business and Professions Code,
notwithstanding the method by which the property was identified,
notice shall be given to the party who reported the property lost or
stolen pursuant to Section 21647 of the Business and Professions
Code.
(b) If the property is in the custody of the law enforcement
agency and it is determined that the property is no longer required
for use as evidence in a criminal case, the property shall be made
available to the person entitled to possession pursuant to Section
1417.5 or if the property was found in the possession of a licensed
pawnbroker or secondhand dealer, pursuant to Section 21647 of the
Business and Professions Code.
(c) Subdivision (a) shall not apply to the return to an owner of a
lost or stolen vehicle, as defined in Section 670 of the Vehicle
Code if the report of theft or loss of the vehicle into the automated
property system preceded the report of the acquisition of property
as set forth in Section 21628 of the Business and Professions Code by
a licensed pawnbroker.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.