BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator John Vasconcellos, Chair S
1997-98 Regular Session B
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SB 457 (Costa) 7
As introduced
Hearing date: April 22, 1997
Health & Safety Code
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DRUG ASSET FORFEITURE
HISTORY
Source:California District Attorneys Association
Prior Legislation: AB 114 (Burton, 1994) -- Chapter 314
Support: California State Sheriffs' Association; California
Peace Officers' Association; California Police
Chiefs' Association
Opposition:California Attorneys for Criminal Justice
KEY ISSUES
SHOULD DRUG ASSET FORFEITURE LAWS BE EXPANDED TO INCLUDE DRUG-RELATED MURDER?
SHOULD VARIOUS OTHER CHANGES BE MADE TO THE DRUG ASSET FORFEITURE LAW?
PURPOSE
Existing law provides a mechanism for forfeiture of real
and personal property which are used or are intended for
use as an instrument to facilitate an offense involving
manufacture, sale, possession for sale or transportation of
controlled substances. (Health & Safety Code Section 11469
et seq.) Proof beyond a reasonable doubt is generally
required for forfeiture, except for cash or negotiable
instruments valued at $25,000 or more. (Health & Safety
Code Section 11488.4(i))
This bill would make various changes intended to conform
and expand the existing drug asset forfeiture provisions.
Existing law provides for forfeiture of a boat, airplane,
or vehicle used as an instrument to facilitate the
possession for sale or sale of specified amounts of
controlled substances. (Health & Safety Code Section
11470(e))
This bill would add manufacture to the predicate offenses.
Existing law provides for forfeiture of monies, other
negotiable instruments, and other things of value furnished
or intended to be furnished in exchange for a controlled
substance or traceable to the exchange. (Health & Safety
Code Section 11470(f))
This bill would add possession of a false compartment
intended to store or conceal a controlled substance,
employing a minor to commit a controlled substance
violation or furnishing a controlled substance to a minor,
and possession of precursors of methamphetamine with intent
to manufacture to the list of controlled substance offenses
triggering forfeiture.
This bill would also add murder as it relates to a
controlled substance offense.
Existing law provides for forfeiture of personal property
when furnished or intended to be furnished in exchange for
a controlled substance or traceable to the exchange.
(Health & Safety Code Section 11470(h) In the case of cash
or negotiable instruments of $25,000 or more, proof of the
offense is by clear and convincing evidence, and there is
no requirement of a criminal conviction. (Health & Safety
Code Section 11488.4(i)(4))
This bill would add employing a minor to commit a
controlled substance violation or furnishing a controlled
substance to a minor, possession of precursors of
methamphetamine with intent to manufacture, and conspiracy
to commit a controlled substance violation to the list of
controlled substance offenses triggering forfeiture.
This bill would also add murder as it relates to a
controlled substance offense.
Existing law provides for the distribution of money after
sale of forfeited property, after reimbursement for all
expenditures in connection with the sale of the property,
including expenditures for any necessary repairs, storage,
or transportation of the property. (Health & Safety Code
Section 11489)
This bill would expressly allow for reimbursement for any
necessary costs of notice that are required by law.
The bill would also correct outdated cross-references and
make technical and conforming changes.
The purpose of this bill is to update and expand the drug
asset forfeiture statutes.
COMMENTS
1. Expressed Purpose of the Bill
According to the author:
This legislation is being proposed to achieve the
goals of the Legislature as stated in Health and
Safety Code Section 11469. When the present
scheme was enacted in 1994, certain trafficking
charges were omitted. This appears to be an
oversight and the issue was not addressed in the
report from the Joint Committee.
This legislation would amend Health and Safety
Code Section 11470 to include these felony
charges. The amendments are basically
manufacturing of controlled substances charges,
using minors to sell controlled substances or
altering a vehicle to smuggle controlled
substances. Additionally, the property of a drug
trafficker that is derived from sales of
controlled substance would be subject to
forfeiture if that trafficker is convicted of
murder.
The remaining proposed amendments conform the
rest of the statutory scheme to current law. For
example, the sections defining how the forfeiture
trail should be conducted cites the wrong Code of
Civil Procedure Sections. In essence these
amendments are technical in nature.
This statute does not make any changes to the
burden of proof, the requirement for a conviction
or in the distribution of forfeited property.
The amendments focus only on drug traffickers and
not on the drug user. It does not remove any of
the procedural protections the Legislature
implemented in 1994.
2. Addition of New Misdemeanor as a Predicate Offense
Existing law provides for forfeiture of monies, other
negotiable instruments, and other things of value furnished
or intended to be furnished in exchange for a controlled
substance or traceable to the exchange.
This bill would add possession of a false compartment
intended to store or conceal a controlled substance to the
list of controlled substance offenses triggering
forfeiture.
Possession of a false compartment may either be a
misdemeanor or felony. (Health & Safety Code Section
11366.8(a)) Thus, a misdemeanor violation of this
provision could trigger the drug asset forfeiture law,
leading to forfeiture of the vehicle as well as other
assets belonging to the defendant.
SHOULD THE EXPANSION OF THE DRUG ASSET FORFEITURE LAWS
ENVISIONED BY SB 457 BE LIMITED TO FELONY OFFENSES?
3. Addition of Murder to the Drug Asset Forfeiture
Statutes
Existing law provides for forfeiture of monies, other
negotiable instruments, other things of value, and personal
property furnished or intended to be furnished in exchange
for specified controlled substance offenses.
This bill would add murder as it relates to one of those
offenses.
According to the sponsor, the addition of murder results
from the case of People v . Munoz , KC 066910A. In that
case, the defendant was involved in a physical altercation
in a hotel room with his girlfriend. The defendant's
friend attempted to intervene and was repeatedly stabbed.
Another person in the hotel came to the room because of the
noise and was shot and killed. The defendant was convicted
of one count of murder, two counts of attempted murder, and
enhancements, and was sentenced to life with the
possibility of parole plus 18 determinate years.
The defendant and his friend had in their possession
articles consistent with drug sales: $14,000 in cash,
scales, a small amount of marijuana, weapons, pagers, and
no luggage.
For forfeiture of the cash, a controlled substance
conviction or an amount of at least $25,000 is necessary.
In this case, the cash could not be forfeited because there
was no conviction for a controlled substance offense and
the amount was under $25,000.
This bill would therefore add murder as it relates to a
drug offense to the list of predicate offenses for asset
forfeiture.
No other non-drug offenses are predicate offenses.
SHOULD THE DRUG ASSET FORFEITURE LAWS BE EXPANDED TO
INCLUDE NON-DRUG OFFENSES?
The existing forfeiture provision for conspiracy specifies
that it is limited to manufacture, sale, possession for
sale, offer for sale, offer to manufacture, or conspiracy
to commit one of the specified controlled substance
violations. As SB 457 is structured, there is no parallel
prohibition on the new murder provision.
SHOULD THE MURDER PROVISION BE CLARIFIED TO APPLY ONLY TO
MANUFACTURE, SALE, POSSESSION FOR SALE, OFFER FOR SALE,
OFFER TO MANUFACTURE, OR CONSPIRACY TO COMMIT ONE OF THOSE
OFFENSES?
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