California Penal Code Section 502.01

Legal Research Home > California Lawyer > Penal Code > California Penal Code Section 502.01

(a) As used in this section:
   (1) "Property subject to forfeiture" means any property of the
defendant that is illegal telecommunications equipment as defined in
subdivision (g) of Section 502.8, or a computer, computer system, or
computer network, and any software or data residing thereon, if the
telecommunications device, computer, computer system, or computer
network was used in committing a violation of, or conspiracy to
commit a violation of, subdivision (b) of Section 272, Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 422, 470,
470a, 472, 475, 476, 480, 483.5, 484g, or subdivision (a), (b), or
(d) of Section 484e, subdivision (a) of Section 484f, subdivision (b)
or (c) of Section 484i, subdivision (c) of Section 502, or Section
502.7, 502.8, 529, 529a, or 530.5, 537e, 593d, 593e, or 646.9, or was
used as a repository for the storage of software or data obtained in
violation of those provisions. Forfeiture shall not be available for
any property used solely in the commission of an infraction. If the
defendant is a minor, it also includes property of the parent or
guardian of the defendant.
   (2) "Sentencing court" means the court sentencing a person found
guilty of violating or conspiring to commit a violation of
subdivision (b) of Section 272, Section 288, 288.2, 311.1, 311.2,
311.3, 311.4, 311.5, 311.10, 311.11, 422, 470, 470a, 472, 475, 476,
480, 483.5, 484g, or subdivision (a), (b), or (d) of Section 484e,
subdivision (d) of Section 484e, subdivision (a) of Section 484f,
subdivision (b) or (c) of Section 484i, subdivision (c) of Section
502, or Section 502.7, 502.8, 529, 529a, 530.5, 537e, 593d, 593e, or
646.9, or, in the case of a minor, found to be a person described in
Section 602 of the Welfare and Institutions Code because of a
violation of those provisions, the juvenile court.
   (3) "Interest" means any property interest in the property subject
to forfeiture.
   (4) "Security interest" means an interest that is a lien,
mortgage, security interest, or interest under a conditional sales
contract.
   (5) "Value" has the following meanings:
   (A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
   (B) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price
of the number of completed computer software packages that could
have been made from those components.
   (b) The sentencing court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or by agreement of all
parties, at the time of sentencing, conduct a hearing to determine
whether any property or property interest is subject to forfeiture
under this section. At the forfeiture hearing, the prosecuting
attorney shall have the burden of establishing, by a preponderance of
the evidence, that the property or property interests are subject to
forfeiture. The prosecuting attorney may retain seized property that
may be subject to forfeiture until the sentencing hearing.
   (c) Prior to the commencement of a forfeiture proceeding, the law
enforcement agency seizing the property subject to forfeiture shall
make an investigation as to any person other than the defendant who
may have an interest in it. At least 30 days before the hearing to
determine whether the property should be forfeited, the prosecuting
agency shall send notice of the hearing to any person who may have an
interest in the property that arose before the seizure.
   A person claiming an interest in the property shall file a motion
for the redemption of that interest at least 10 days before the
hearing on forfeiture, and shall send a copy of the motion to the
prosecuting agency and to the probation department.
   If a motion to redeem an interest has been filed, the sentencing
court shall hold a hearing to identify all persons who possess valid
interests in the property. No person shall hold a valid interest in
the property if, by a preponderance of the evidence, the prosecuting
agency shows that the person knew or should have known that the
property was being used in violation of, or conspiracy to commit a
violation of, subdivision (b) of Section 272, Section 288, 288.2,
311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a, 472,
475, 476, 480, 483.5, 484g, or subdivision (a), (b), or (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) or (c)
of Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, 530.5, 537e, 593d, 593e, or 646.9, and that the
person did not take reasonable steps to prevent that use, or if the
interest is a security interest, the person knew or should have known
at the time that the security interest was created that the property
would be used for a violation.
   (d) If the sentencing court finds that a person holds a valid
interest in the property, the following provisions shall apply:
   (1) The court shall determine the value of the property.
   (2) The court shall determine the value of each valid interest in
the property.
   (3) If the value of the property is greater than the value of the
interest, the holder of the interest shall be entitled to ownership
of the property upon paying the court the difference between the
value of the property and the value of the valid interest.
   If the holder of the interest declines to pay the amount
determined under paragraph (2), the court may order the property sold
and designate the prosecutor or any other agency to sell the
property. The designated agency shall be entitled to seize the
property and the holder of the interest shall forward any
documentation underlying the interest, including any ownership
certificates for that property, to the designated agency. The
designated agency shall sell the property and pay the owner of the
interest the proceeds, up to the value of that interest.
   (4) If the value of the property is less than the value of the
interest, the designated agency shall sell the property and pay the
owner of the interest the proceeds, up to the value of that interest.

   (e) If the defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to forfeiture that is the
property of the parent or guardian of the minor.
   (1) The prosecuting agency shall notify the parent or guardian of
the forfeiture hearing at least 30 days before the date set for the
hearing.
   (2) The computer or telecommunications device shall not be subject
to forfeiture if the parent or guardian files a signed statement
with the court at least 10 days before the date set for the hearing
that the minor shall not have access to any computer or
telecommunications device owned by the parent or guardian for two
years after the date on which the minor is sentenced.
   (3) If the minor is convicted of a violation of Section 288,
288.2, 311.1, 311.2, 311.3, 311.4, 311.5, 311.10, 311.11, 470, 470a,
472, 476, 480, or subdivision (b) of Section 484e, subdivision (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, or 530.5, within two years after the date on which
the minor is sentenced, and the violation involves a computer or
telecommunications device owned by the parent or guardian, the
original property subject to forfeiture, and the property involved in
the new offense, shall be subject to forfeiture notwithstanding
paragraph (2).
   (4) Notwithstanding paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor's parent or guardian makes full
restitution to the victim of a crime enumerated in this chapter in
an amount or manner determined by the court, the forfeiture
provisions of this chapter do not apply to the property of that
parent or guardian if the property was located in the family's
primary residence during the commission of the crime.
   (f) Notwithstanding any other provision of this chapter, the court
may exercise its discretion to deny forfeiture where the court finds
that the convicted defendant, or minor adjudicated to come within
the jurisdiction of the juvenile court, is not likely to use the
property otherwise subject to forfeiture for future illegal acts.
   (g) If the defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be distributed as
follows:
   (1) First, to the victim, if the victim elects to take the
property as full or partial restitution for injury, victim
expenditures, or compensatory damages, as defined in paragraph (1) of
subdivision (e) of Section 502. If the victim elects to receive the
property under this paragraph, the value of the property shall be
determined by the court and that amount shall be credited against the
restitution owed by the defendant. The victim shall not be penalized
for electing not to accept the forfeited property in lieu of full or
partial restitution.
   (2) Second, at the discretion of the court, to one or more of the
following agencies or entities:
   (A) The prosecuting agency.
   (B) The public entity of which the prosecuting agency is a part.
   (C) The public entity whose officers or employees conducted the
investigation resulting in forfeiture.
   (D) Other state and local public entities, including school
districts.
   (E) Nonprofit charitable organizations.
   (h) If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction. The proceeds of the sale shall be distributed by the court
as follows:
   (1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.
   (2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).

Last modified: July 31, 2008