Bill Text: CA SB762 | 2013-2014 | Regular Session | Chaptered
Bill Title: Secondhand goods: lost, stolen, or embezzled items.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2013-09-20 - Chaptered by Secretary of State. Chapter 318, Statutes of 2013. [SB762 Detail]
Download: California-2013-SB762-Chaptered.html
BILL NUMBER: SB 762 CHAPTERED
BILL TEXT
CHAPTER 318
FILED WITH SECRETARY OF STATE SEPTEMBER 20, 2013
APPROVED BY GOVERNOR SEPTEMBER 20, 2013
PASSED THE SENATE SEPTEMBER 6, 2013
PASSED THE ASSEMBLY SEPTEMBER 4, 2013
AMENDED IN ASSEMBLY AUGUST 21, 2013
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 1411 and 11108.5 of the Penal Code, relating to secondhand
goods.
LEGISLATIVE COUNSEL'S DIGEST
SB 762, 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 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. The bill
would limit these provisions to licensed pawnbrokers and secondhand
dealers and would revise notification procedures regarding lost,
stolen, or embezzled 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 property that it
has taken physical possession of at the conclusion of the criminal
proceedings.
(2) 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.
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.
(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) Shall 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.
(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, 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) 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 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 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. 4. 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. 5. 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.
