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SB-718 Terrorism: civil action.(2017-2018)

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Date Published: 02/17/2017 09:00 PM
SB718:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 718


Introduced by Senator Anderson

February 17, 2017


An act to add Section 52.8 to the Civil Code, relating to terrorism.


LEGISLATIVE COUNSEL'S DIGEST


SB 718, as introduced, Anderson. Terrorism: civil action.
Existing law provides that every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily harm, and from injury to his or her personal relations. Existing law authorizes the California Victim Compensation and Government Claims Board to compensate a victim of a crime from the Restitution Fund, a continuously appropriated fund, for pecuniary loss incurred as a direct result of the crime, when the board determines it will best aid the person seeking compensation. Existing law subjects certain property to forfeiture, such as controlled substances and equipment used to process controlled substances. Existing law allows peace officers, under specified circumstances, to seize property that is subject to forfeiture. Existing law authorizes specified public agencies to bring an action to recover expenses of seizing, eradicating, destroying, or taking remedial action with respect to any controlled substance. Existing law requires seized property or the proceeds from the sale of that property to be distributed among specified entities.
This bill would subject property used in the course of, intended for use in the course of, derived from, or realized through an act of terrorism, by a person or entity who committed, who aided a person or entity to commit, or who coerced, induced, or solicited a person or entity to commit an act of terrorism to civil forfeiture. The bill would specify the circumstances under which property subject to civil forfeiture may be seized by a law enforcement officer. The bill would authorize a person who is injured by an act of terrorism, and a law enforcement agency or other governmental agency that participated in the investigation, mitigation, seizure, or forfeiture process for an act of terrorism, to file a claim to recover damages and costs, and prioritize allocation of the proceeds of the civil forfeiture and disposition, as specified.
This bill would also authorize a person who is injured by an act of terrorism, as defined, to bring an action to recover damages against a person or entity who committed the act of terrorism, aided the person or entity to commit the act or terrorism, or coerced, induced, or solicited the person or entity to commit the act of terrorism. The bill would provide that the amount awarded may be up to 3 times the damages actually incurred, but in no event less than $10,000.
This bill would permit a civil forfeiture proceeding or civil action under this section to be commenced at any time within 5 years after the act of terrorism occurred, and would toll the time for commencement of a civil action during the pendency of a criminal prosecution.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 52.8 is added to the Civil Code, to read:

52.8.
 (a) All property, including money, used in the course of, intended for use in the course of, derived from, or realized through an act of terrorism, by a person or entity who committed, who aided a person or entity to commit, or who coerced, induced, or solicited a person or entity to commit an act of terrorism is subject to civil forfeiture.
(b) A person who is injured by an act of terrorism, and a law enforcement agency or other governmental agency that participated in the investigation, mitigation, seizure, or forfeiture process for an act of terrorism, may file a claim under this section to recover damages and costs.
(c) The allocation of proceeds from a civil forfeiture and disposition under this section shall be paid to a person who was injured by an act of terrorism, and a law enforcement agency or other governmental agency that participated in the investigation, mitigation, seizure, or forfeiture process for an act of terrorism in the following order:
(1) (A) First, the costs of investigation shall be paid to the law enforcement agency or governmental agency that conducted the investigation.
(B) If more than one law enforcement agency or governmental agency jointly conducted the investigation, the costs of investigation shall be paid equally to the law enforcement agencies and governmental agencies.
(C) If more than one law enforcement agency or governmental agency jointly conducted the investigation, however one agency primarily conducted the investigation, the costs of investigation first shall be paid to the law enforcement agency or governmental agency with actual costs reimbursed on a pro rata basis to the other law enforcement agencies or governmental agencies participating in the investigation, not to exceed 10 percent of the cost of investigation allocated to the primary law enforcement agency or governmental agency.
(2) Second, 25 percent of the proceeds plus the costs of prosecution or all of the remaining proceeds, whichever is less, shall be paid to the prosecuting attorney.
(3) Third, the costs of investigation shall be paid on a pro rata basis to a law enforcement agency or governmental agency that was not fully reimbursed under subparagraph (C).
(4) Fourth, the costs of mitigation, seizure, or forfeiture shall be paid on a pro rata basis to a law enforcement agency or governmental agency that participated in the mitigation, seizure, or forfeiture process.
(5) Fifth, any remaining proceeds shall be paid on a pro rata basis to satisfy any judgments for persons injured as a result of the criminal offense.
(d) (1) Property subject to civil forfeiture under ths section may be seized by a law enforcement officer upon the issuance of a court order.
(2) Seizure without a court order shall occur only under the following circumstances:
(A) The seizure is incident to a lawful arrest or search.
(B) The property subject to seizure has been the subject of a prior judgment in favor of the state in a civil forfeiture proceeding based upon this section.
(3) (A) A civil forfeiture action resulting from a seizure under this section shall be initiated promptly.
(B) Property taken or detained under this section is not subject to sequestration or attachment, but is deemed to be in the custody of the law enforcement officer making the seizure, subject only to court order.
(C) If property is seized under this section, pending forfeiture and final disposition, the law enforcement officer making the seizure shall place the property under seal, remove the property to a place designated by the court, or request that another authorized agency take custody of the property and remove it to an appropriate location.
(e) (1) If a prosecuting agency proceeds under subdivision (a), that agency shall, in conjunction with a criminal proceeding, file a petition for forfeiture with the superior court of the county in which the defendant has been charged with the commission of any of the crimes listed in subdivision (l) that shall allege that the defendant has committed those crimes and the property is forfeitable pursuant to subdivision (a).
(2) The prosecuting agency shall make service of process of a notice regarding that petition upon every individual who may have a property interest in the alleged proceeds, and that notice shall state that any interested party may file a verified claim with the superior court stating the amount of the party’s claimed interest and an affirmation or denial of the prosecuting agency’s allegation.
(3) If the notices cannot be served by registered mail or personal delivery, the notices shall be published for at least three consecutive weeks in a newspaper of general circulation in the county where the property is located.
(4) If the property alleged to be subject to forfeiture is real property, the prosecuting agency shall, at the time of filing the petition for forfeiture, record a lis pendens in each county in which real property alleged to be subject to forfeiture is located.
(5) The judgment of forfeiture shall not affect the interest of any third party in real property that was acquired prior to the recording of the lis pendens.
(6) All notices shall set forth the time within which a claim of interest in the property seized is required to be filed pursuant to this section.
(f) Any person claiming an interest in the property or proceeds seized may, at any time within 30 days from the date of the first publication of the notice of seizure, or within 30 days after receipt of the actual notice, file with the superior court of the county in which the action is pending a verified claim stating his or her interest in the property or proceeds. A verified copy of the claim shall be given by the claimant to the Attorney General, or the district or city attorney, whichever is the prosecuting agency of the underlying crime.
(g) (1) If, at the end of the time set forth in subdivision (f), an interested person, other than the defendant, has not filed a claim, the court, upon a motion, shall declare that the person has defaulted upon his or her alleged interest, and that interest shall be subject to forfeiture upon proof of the elements of subdivision (a).
(2) The defendant may admit or deny that the property is subject to forfeiture pursuant to this section. If the defendant fails to admit or deny, or fails to file a claim of interest in the property or proceeds, the court shall enter a response of denial on behalf of the defendant.
(h) (1) The forfeiture proceeding shall be set for hearing in the superior court in which the underlying criminal offense will be tried.
(2) If the defendant is found guilty of the underlying offense, the issue of forfeiture shall be promptly tried, either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties.
(3) At the forfeiture proceeding, the prosecuting agency shall have the burden of establishing beyond a reasonable doubt that the defendant was engaged in any of the crimes described in subdivision (l) and that the property comes within the provisions of subdivision (a).
(i) If the trier of fact at the forfeiture hearing finds that the alleged property or proceeds are forfeitable pursuant to subdivision (a), and that the defendant was convicted of a crime listed in subdivision (l), the court shall declare that property or proceeds forfeited to the state, and subject to allocation as provided in subdivision (c).
(j) (1) A person who is injured by an act of terrorism may bring an action to recover damages against a person or entity who committed, who aided a person or entity to commit, or who coerced, induced, or solicited a person or entity to commit that act of terrorism.
(2) The amount awarded may be up to three times the damages actually incurred, but in no event less than ten thousand dollars ($10,000). If the plaintiff prevails, the plaintiff shall be awarded reasonable attorney’s fees and costs of investigation and litigation.
(3) All persons or entities who commit an act of terrorism, aid the person or entity to commit the act of terrorism, or coerce, induce, or solicit the person or entity to committed the act of terrorism, shall be jointly and severally liable for all damages, attorney’s fees, and costs of investigation and litigation.
(k) Notwithstanding any law, a civil forfeiture proceeding or civil action under this section may be commenced at any time within five years after the act of terrorism was committed. If a criminal prosecution proceeds against a person or entity who committed an act of terrorism, aided the person or entity to commit the act of terrorism, or coerced, induced, or solicited the person or entity to commit the act of terrorism, the time for commencement of a civil action shall be tolled during the pendency of that criminal prosecution.
(l) As used in this section, “terrorism” means the commission of any of the acts listed in this subdivision if the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion.
(1) Killing of a human being, including unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1 of the Penal Code.
(2) Intentional infliction of great bodily injury upon a human being.
(3) Kidnapping, as defined in Section 207 of the Penal Code.
(4) Arson, as defined in Chapter 1 (commencing with Section 450) of Title 13 of Part 1 of the Penal Code.
(5) Felony vandalism, as defined in paragraph (1) of subdivision (b) of Section 594 of the Penal Code.
(6) Assault with a deadly weapon or by means of force likely to produce great bodily injury, as defined in Section 245 of the Penal Code.
(7) Robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1 of the Penal Code.
(8) Shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246 of the Penal Code.
(9) Discharging or permitting the discharge of a firearm from a motor vehicle, as defined in subdivisions (a) and (b) of Section 26100 of the Penal Code.
(10) Rape, as defined in Section 261 of the Penal Code.
(11) Looting, as defined in Section 463 of the Penal Code.
(12) Aggravated mayhem, as defined in Section 205 of the Penal Code.
(13) Torture, as defined in Section 206 of the Penal Code.
(14) Carjacking, as defined in Section 215 of the Penal Code.
(15) Threats to commit crimes that would result in death or great bodily injury, as defined in Section 422 of the Penal Code.
(16) Using or directly employing against another person a weapon of mass destruction in a form that may cause widespread great bodily injury or death.
(17) Using a weapon of mass destruction in a form that may cause widespread damage to or disruption of the food supply or “source of drinking water” as defined in subdivision (d) of Section 25249.11 of the Health and Safety Code.
(18) Using a weapon of mass destruction in a form that may cause widespread and significant damage to public natural resources, including coastal waterways and beaches, public parkland, surface waters, groundwater, and wildlife.
(19) Using recombinant technology or any other biological advance to create new pathogens or more virulent forms of existing pathogens for use in any crime.
(20) Giving, mailing, sending, or causing to be sent any false or facsimile weapon of mass destruction to another person, or placing, causing to be placed, or possessing any false or facsimile weapon of mass destruction, with the intent to cause another person to fear for his or her own safety, or for the personal safety of others.
(21) Knowingly threatening to use a weapon of mass destruction.
(m) As used in this section, “aiding a person or entity to commit an act of terrorism” means raising, soliciting, collecting, or providing material support or resources with the intent that it will be used, in whole or in part, to plan, prepare, carry out, or aid in any act of terrorism, hindering the prosecution of terrorism, or the concealment of, or escape from, an act of terrorism.
(n) As used in this section, “hindering prosecution of terrorism” includes, but is not limited to, all of the following:
(1) Harboring or concealing a person who is known, or believed, by the offender to have committed an act of terrorism.
(2) Warning a person who is known, or believed, by the offender to have committed an act of terrorism of impending discovery or apprehension.
(3) Suppressing any physical evidence that might aid in the discovery or apprehension of a person who is known, or believed, by the offender to have committed an act of terrorism.
(o) As used in this section, “material support or resources” means currency or other financial assistance, financial services, instruments of value, lodging, training, safehouses, false documentation or identification, communication equipment, computer equipment, software, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except the provision of medical attention by a licensed health care provider or religious materials.
(p) As used in this section, “weapon of mass destruction” includes, but is not limited to, chemical warfare agents, weaponized biological or biologic warfare agents, restricted biological agents, nuclear agents, radiological agents, or the intentional release of industrial agents, as a weapon, or an aircraft, vessel, or vehicle as described in Section 34500 of the Vehicle Code, that is used as a destructive weapon.