People v. Superior Court (Clements)

*494 Opinion

In this petition for writ of mandate, the People challenge respondent court’s release of assets subject to forfeiture pursuant to Health and Safety Code section 11470 et seq. to enable defendants to secure private counsel. 1 We consider the People’s challenge despite a contention that it is untimely. We conclude that the California statutory scheme authorizes forfeiture of even that property necessary for the retention of private counsel, and we hold that such retention is not prohibited by the constitutional right to counsel.

Section 11470 as amended in 1986 (Stats. 1986, ch. 1044, § 25.5) provides that “all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished” in illegal drug transactions are subject to forfeiture “if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property.” (Subd. (f).) The section further provides that “all right, title, and interest in any personal property described in this section shall vest in the state upon commission of the act giving rise to forfeiture under this chapter.” (Subd. (h).) Property subject to…

I dissent. Health and Safety Code 1 section 11488.4, subdivision (h) (hereinafter subdivision (h)), provides in pertinent part: “If there is an underlying or related criminal action, a defendant may move. . . for the return of the property on the grounds that there is not probable cause to believe that the property is forfeitable pursuant to subdivisions (a) to (g), inclusive, of Section 11470 and is not automatically made forfeitable or subject to court order of forfeiture ... by another provision of this chapter. The motion may be made at the preliminary examination or subsequent thereto. ... [If] Within 15 days after a defendant’s motion is granted, the people may file a petition for a writ of mandate or prohibition seeking appellate review of the ruling.”

Each of the criminal defendants who are among the real parties in interest to this petition was affected by identical documents denominated “Complaint And Petition For Forfeiture (Health And Safety Code Section[s] 11470[,] 11488.4 & 11488.5 et seq.)” filed by the district attorney. Each of those defendants filed in the municipal court a separate “Motion For Return Of Property” on the ground that “release of the funds is…

Martin D. Lurie, V. Roy Lefcourt, Michael J. Gaines, Ellen Chaitan, Tammy Edmonson and Maureen R. Kallins for Real Parties in Interest.

Ephraim Margolin and Bradford L. Battson as Amici Curiae on behalf of Real Parties in Interest.

OPINION

ANDERSON, P.J.

In this petition for writ of mandate, the People challenge respondent court's release of assets subject to forfeiture pursuant to Health and Safety Code section 11470 et seq. to enable defendants to secure private counsel. [1] We consider the People's challenge despite a contention that it is untimely. We conclude that the California statutory scheme authorizes forfeiture of even that property necessary for the retention of private counsel, and we hold that such retention is not prohibited by the constitutional right to counsel.

Section 11470 as amended in 1986 (Stats. 1986, ch. 1044, § 25.5) provides that "all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished" in illegal drug transactions are subject to forfeiture "if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property." (Subd. (f).)…