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AB-1145 Graffiti: forfeiture of vehicle.(2007-2008)

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CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Assembly Bill
No. 1145

Introduced  by  Assembly Member Huff

February 23, 2007

An act to add Section 594.9 to the Penal Code, relating to graffiti.


LEGISLATIVE COUNSEL'S DIGEST


AB 1145, as introduced, Huff. Graffiti: forfeiture of vehicle.
Existing law establishes the offense of vandalism, which generally includes placing graffiti in or on public or private property, as well as other defacing or damaging acts.
This bill would provide for the seizure and forfeiture of a vehicle when the owner of the vehicle uses the vehicle in connection with commission of a violation of the vandalism provisions described above.
By imposing additional procedures on local prosecutorial entities, this 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 594.9 is added to the Penal Code, to read:

594.9.
 (a) As used in this section, the following terms have the following meanings:
(1) “Owner” means any person who to whom the subject vehicle is registered.
(2) “Vehicle” means any transportation device that requires the driver to have in his or her immediate possession a valid driver’s license for the appropriate class of vehicle being driven.
(b) Any vehicle used by the owner of the vehicle to engage in a violation of Section 594 where the violation results in damage of four hundred dollars ($400) or more, is declared a nuisance and the vehicle shall be enjoined and abated as provided in this section.
(c) All right, title, and interest in any vehicle described in subdivision (b) shall vest in the agency arresting the owner for the violation of Section 594, upon commission of the act giving rise to the nuisance under this section.
(d) A peace officer may seize a vehicle subject to forfeiture under this section upon the issuance of an order by a court having jurisdiction of the vehicle. Seizure without court order may be made in any of the following circumstances:
(1) The seizure is incident to an arrest or search under a search warrant.
(2) There is probable cause to believe the vehicle was used in violation of this section.
(e) A peace officer seizing a vehicle under this section shall complete a receipt in accordance with Section 1412 and deliver it to the person from whose possession the vehicle was seized.
(f) An immediate investigation shall be made by the public agency making the seizure as to any potential claimant to a vehicle whose right, title, interest, or lien is of record in the Department of Motor Vehicles of this or any other state or appropriate federal agency. If the public agency finds that any person, other than the registered owner, is the legal owner, and the ownership did not arise subsequent to the date and time of arrest or seizure of the vehicle or notification of the forfeiture proceedings, it shall within two business days of the vehicle’s seizure, send a notice of seizure to the legal owner at his or her address appearing on the records of the Department of Motor Vehicles of this or any other state or any appropriate federal agency.
(g) The public agency seizing the vehicle shall provide any potential claimants discovered as a result of the investigation set out in subdivision (f) with the opportunity for a postseizure hearing to determine the validity of the seizure. The postseizure hearing shall be conducted within two business days of the request. The public agency may authorize its own officer or employee to conduct the hearing if the hearing officer is not the same person who directed the seizure of the vehicle. Failure of either the registered or legal owner, or his or her agent, to request or attend a scheduled hearing within the appropriate timeframe shall satisfy the postseizure requirement.
(h) The notice of seizure shall include the following:
(1) The name, address, and telephone number of the agency providing the notice.
(2) The authority and reason for the seizure.
(3) A statement that in order to receive their postseizure hearing, the owners, or their agents, shall request the hearing in person, in writing, or by telephone within 10 calendar days of the date of the notice.
(4) The time in which a claim of interest in the vehicle seized or subject to forfeiture is required to be filed.
(i) A vehicle seized pursuant to this section, where appropriate, may be held as evidence in any proceeding brought by the district attorney.
(j) (1) The district attorney may, pursuant to this section, order the forfeiture of vehicles seized under this section.
(2) If the district attorney determines that the factual circumstances warrant forfeiture of the vehicle, the district attorney shall serve a notice of intended forfeiture upon any person who has an interest in the seized vehicle. The notice shall be served as soon as practicable, but in any event within 30 calendar days of the seizure of the vehicle subject to forfeiture.
(3) The notice of intended forfeiture shall be served as follows:
(A) The notice of intended forfeiture shall be served by personal delivery or certified mail, return receipt requested, upon any person who has an interest in the seized vehicle.
(B) In the event that the person entitled to service refuses to accept certified return receipt mail or cannot be personally served, service may be made by substituted service. Substituted service may be accomplished by any one of the following methods:
(i) By leaving a copy during usual business hours at the recipient’s business with the person who is apparently in charge, and by thereafter mailing by first class mail a copy to the recipient where the copy was left.
(ii) By leaving a copy at the recipient’s dwelling or usual place of abode, in the presence of a competent member of the household and thereafter mailing by first class mail a copy to the recipient at the address where the copy was left.
(k) If the person entitled to service lives out of state and will not accept certified return receipt mail, then service may be made by first class mail.
(l) If the person entitled to notice cannot be located, or service cannot be effected as set forth in this subdivision, service may be made by publication in a local newspaper of general circulation. Service shall be deemed sufficient when it is accomplished pursuant to Section 6063 of the Government Code.
(m) (1) A person claiming an interest in the vehicle seized shall, within 10 calendar days from the date of the notice of intended forfeiture or within 30 calendar days from the date of first publication of the notice of intended forfeiture, file with the superior court of the county in which the vehicle was seized, a Claim Opposing Forfeiture, verified in accordance with Section 446 of the Code of Civil Procedure, stating his or her interest in the vehicle. An endorsed copy of the claim shall be served upon the district attorney within 10 calendar days of the filing of the claim.
(2) If a verified claim is filed in accordance with this section, the forfeiture proceeding shall be set for hearing within 30 calendar days from the date the claim is filed with the court.
(3) The hearing shall be before the superior court of the county. The provisions of the Code of Civil Procedure shall apply to proceedings under this section unless otherwise inconsistent with the provisions or procedures set forth in this section. However, in proceedings under this section, there shall be no joinder of actions, coordination of actions, except for forfeiture proceedings, or cross-complaints, and the issues shall be limited strictly to the questions related to this section. Trial shall be by court or jury.
(4) With respect to vehicles for which forfeiture is sought and as to which forfeiture is contested, the district attorney shall have the burden of proving by a preponderance of the evidence that the vehicle was used as described in subdivision (b).
(5) Upon proof that the vehicle was used for any of the purposes set forth in subdivision (b), the court shall declare the vehicle a nuisance and order that the vehicle be forfeited, sold, and the proceeds distributed as set forth in subdivision (n). The court may make a different distribution of the proceeds, if the court finds that the claimant did not know that the vehicle was used for a purpose that constitutes a violation of this section.
(6) If no claims are timely filed, the district attorney shall prepare a written declaration of forfeiture of the vehicle to the appropriate public entity. A written declaration of forfeiture signed by the district attorney under this section shall be deemed to provide good and sufficient title to the forfeited vehicle. The proceeds from the disposal of the vehicle declared forfeited by the district attorney shall be distributed in accordance with subdivision (n). The district attorney ordering forfeiture pursuant to this section shall provide a copy of the declaration of forfeiture to any person who received notice of the forfeiture proceedings.
(n) In all cases where vehicles seized pursuant to this section are forfeited to the local public entity, the vehicles shall be sold, or if cash is paid as settlement in lieu of forfeiture of the vehicle, the proceeds of sale or settlement shall be distributed and appropriated as follows:
(1) To pay costs associated with the towing, storage, and release of any vehicle seized under this section.
(2) To pay costs associated with the sale of the vehicle.
(3) To the lienholder of the vehicle, if any, up to the amount of his, her, or its interest in the vehicle.
(4) The remaining funds shall be distributed as follows:
(A) To the district attorney for all expenditures other than personnel costs, made or incurred in connection with the enforcement of this section, including, but not limited to, costs for equipment, investigation, supplies, litigation, insurance, and liability resulting from enforcement of this section and costs of publication of the notices.
(B) To local law enforcement for all expenditures other than personnel costs, made or incurred in connection with enforcement of this section, including, but not limited to, costs for equipment, investigation, and supplies related to enforcement of this section.
(C) To the general fund of the public entity.
(o) A vehicle that has been reported stolen, prior to a seizure under this section shall not be subject to forfeiture unless the identity of the registered owner cannot be reasonably ascertained or the registered owner fails to redeem the vehicle within 60 days of the seizure. The registered owner of the vehicle may claim the vehicle upon payment of tow, storage, and release charges, provided the vehicle is not subject to any holds for traffic or parking violations and the vehicle registration is current.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.