Chapter 8 - Seizure and Disposition

California Health and Safety Code — §§ 11469-11495

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Sections (39)

Added by Stats. 1994, Ch. 314, Sec. 1. Effective August 19, 1994.

In order to ensure the proper utilization of the laws permitting the seizure and forfeiture of property under this chapter, the Legislature hereby establishes the following guidelines:

(a)Law enforcement is the principal objective of forfeiture. Potential revenue must not be allowed to jeopardize the effective investigation and prosecution of criminal offenses, officer safety, the integrity of ongoing investigations, or the due process rights of citizens.

(b)No prosecutor’s or sworn law enforcement officer’s employment or salary shall be made to depend upon the level of seizures or forfeitures he or she achieves.

(c)Whenever appropriate, prosecutors should seek criminal sanctions as to the underlying criminal acts which give rise to the forfeiture action.

(d)Seizing agencies shall have a manual detailing the statutory grounds for forfeiture and all applicable policies and procedures. The manual shall include procedures for prompt notice to interestholders, the expeditious release of seized property, where appropriate, and the prompt resolution of claims of innocent ownership.

(e)Seizing agencies shall implement training for officers assigned to forfeiture programs, which training should be ongoing.

(f)Seizing agencies shall avoid any appearance of impropriety in the sale or acquisition of forfeited property.

(g)Seizing agencies shall not put any seized or forfeited property into service.

(h)Unless otherwise provided by law, forfeiture proceeds shall be maintained in a separate fund or account subject to appropriate accounting controls and annual financial audits of all deposits and expenditures.

(i)Seizing agencies shall ensure that seized property is protected and its value preserved.

(j)Although civil forfeiture is intended to be remedial by removing the tools and profits from those engaged in the illicit drug trade, it can have harsh effects on property owners in

some circumstances. Therefore, law enforcement shall seek to protect the interests of innocent property owners, guarantee adequate notice and due process to property owners, and ensure that forfeiture serves the remedial purpose of the law.

§ 11470

Amended by Stats. 2017, Ch. 27, Sec. 152. (SB 94) Effective June 27, 2017.

The following are subject to forfeiture:

(a)All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this division.

(b)All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this division.

(c)All property except real property or a boat, airplane, or any vehicle which is used, or intended for use, as a container for property described in subdivision (a) or (b).

(d)All books, records, and

research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this division.

(e)The interest of any registered owner of a boat, airplane, or any vehicle other than an implement of husbandry, as defined in Section 36000 of the Vehicle Code, which has been used as an instrument to facilitate the manufacture of, or possession for sale or sale of 14.25 grams or more of heroin, or a substance containing 14.25 grams or more of heroin, or 14.25 grams or more of a substance containing heroin, or 28.5 grams or more of Schedule I controlled substances except cannabis, peyote, or psilocybin; 10 pounds dry weight or more of cannabis, peyote, or psilocybin; or 28.5 grams or more of cocaine, as specified in paragraph (6) of subdivision (b) of Section 11055, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or methamphetamine; or a substance containing 28.5

grams or more of cocaine, as specified in paragraph (6) of subdivision (b) of Section 11055, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or methamphetamine; or 57 grams or more of a substance containing cocaine, as specified in paragraph (6) of subdivision (b) of Section 11055, cocaine base as specified in paragraph (1) of subdivision (f) of Section 11054, or methamphetamine; or 28.5 grams or more of Schedule II controlled substances. An interest in a vehicle which may be lawfully driven on the highway with a class C, class M1, or class M2 license, as prescribed in Section 12804.9 of the Vehicle Code, shall not be forfeited under this subdivision if there is a community property interest in the vehicle by a person other than the defendant and the vehicle is the sole class C, class M1, or class M2 vehicle available to the defendant’s immediate family.

(f)All moneys, negotiable instruments, securities, or

other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation of Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or Section 182 of the Penal Code, or a felony violation of Section 11366.8 of this code, insofar as the offense involves manufacture, sale, possession for sale, offer for sale, or offer to manufacture, or conspiracy to commit at least one of those offenses, if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property, or the filing of a petition under this chapter, or the issuance of an order of forfeiture of the property, whichever comes first.

(g)The real property of

any property owner who is convicted of violating Section 11366, 11366.5, or 11366.6 with respect to that property. However, property which is used as a family residence or for other lawful purposes, or which is owned by two or more persons, one of whom had no knowledge of its unlawful use, shall not be subject to forfeiture.

(h)(1) Subject to the requirements of Section 11488.5 and except as further limited by this subdivision to protect innocent parties who claim a property interest acquired from a defendant, 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, if the state or local governmental entity proves a violation of Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or Section 182 of the Penal Code, or a felony

violation of Section 11366.8 of this code, insofar as the offense involves the manufacture, sale, possession for sale, offer for sale, offer to manufacture, or conspiracy to commit at least one of those offenses, in accordance with the burden of proof set forth in paragraph (1) of subdivision (i) of Section 11488.4 or, in the case of cash or negotiable instruments in excess of twenty-five thousand dollars ($25,000), paragraph (4) of subdivision (i) of Section 11488.4.

(2)The operation of the special vesting rule established by this subdivision shall be limited to circumstances where its application will not defeat the claim of any person, including a bona fide purchaser or encumbrancer who, pursuant to Section 11488.5, 11488.6, or 11489, claims an interest in the property seized, notwithstanding that the interest in the property being claimed was acquired from a defendant whose property interest would otherwise have been subject to divestment

pursuant to this subdivision.

§ 11470.1

Amended by Stats. 2022, Ch. 258, Sec. 30. (AB 2327) Effective January 1, 2023. Operative January 1, 2024, pursuant to Sec. 130 of Stats. 2022, Ch. 258.

(a)The expenses of seizing, eradicating, destroying, or taking remedial action with respect to, any controlled substance or its precursors shall be recoverable from:

(1)Any person who manufactures or cultivates a controlled substance or its precursors in violation of this division.

(2)Any person who aids and abets or who knowingly profits in any manner from the manufacture or cultivation of a controlled substance or its precursors on property owned, leased, or possessed by the defendant, in violation of this division.

(b)The expenses of taking remedial action with respect to any controlled substance or its precursors shall also be

recoverable from any person liable for the costs of that remedial action under Part 2 (commencing with Section 78000) of Division 45.

(c)It shall be necessary to seek or obtain a criminal conviction for the unlawful manufacture or cultivation of any controlled substance or its precursors prior to the entry of judgment for the recovery of expenses. If criminal charges are pending against the defendant for the unlawful manufacture or cultivation of any controlled substance or its precursors, an action brought pursuant to this section shall, upon a defendant’s request, be continued while the criminal charges are pending.

(d)The action may be brought by the district attorney, county counsel, city attorney, the State Department of Health Care Services, or Attorney General. All expenses recovered pursuant to this section shall be remitted to the law enforcement agency which incurred

them.

(e)(1) The burden of proof as to liability shall be on the plaintiff and shall be by a preponderance of the evidence in an action alleging that the defendant is liable for expenses pursuant to paragraph (1) of subdivision (a). The burden of proof as to liability shall be on the plaintiff and shall be by clear and convincing evidence in an action alleging that the defendant is liable for expenses pursuant to paragraph (2) of subdivision (a). The burden of proof as to the amount of expenses recoverable shall be on the plaintiff and shall be by a preponderance of the evidence in any action brought pursuant to subdivision (a).

(2)Notwithstanding paragraph (1), for any person convicted of a criminal charge of the manufacture or cultivation of a controlled substance or its precursors there shall be a presumption affecting the burden of proof that the person

is liable.

(f)Only expenses which meet the following requirements shall be recoverable under this section:

(1)The expenses were incurred in seizing, eradicating, or destroying the controlled substance or its precursors or in taking remedial action with respect to a hazardous substance. These expenses may not include any costs incurred in use of the herbicide paraquat.

(2)The expenses were incurred as a proximate result of the defendant’s manufacture or cultivation of a controlled substance in violation of this division.

(3)The expenses were reasonably incurred.

(g)For purposes of this section, “remedial action” shall have the meaning set forth in Section 78125.

(h)For the purpose of discharge in bankruptcy, a judgment for recovery of expenses under this section shall be deemed to be a debt for willful and malicious injury by the defendant to another entity or to the property of another entity.

(i)Notwithstanding Section 526 of the Code of Civil Procedure, the plaintiff may be granted a temporary restraining order or a preliminary injunction, pending or during trial, to restrain the defendant from transferring, encumbering, hypothecating, or otherwise disposing of any assets specified by the court, if it appears by the complaint that the plaintiff is entitled to the relief demanded and it appears that the defendant may dispose of those assets to thwart enforcement of the judgment.

(j)The Legislature finds and declares that civil penalties for the recovery of expenses

incurred in enforcing the provisions of this division shall not supplant criminal prosecution for violation of those provisions, but shall be a supplemental remedy to criminal enforcement.

(k)Any testimony, admission, or any other statement made by the defendant in any proceeding brought pursuant to this section, or any evidence derived from the testimony, admission, or other statement, shall not be admitted or otherwise used in any criminal proceeding arising out of the same conduct.

(l)No action shall be brought or maintained pursuant to this section against a person who has been acquitted of criminal charges for conduct that is the basis for an action under this section.

§ 11470.2

Added by Stats. 1983, Ch. 931, Sec. 2.

(a)In lieu of a civil action for the recovery of expenses as provided in Section 11470.1, the prosecuting attorney in a criminal proceeding may, upon conviction of the underlying offense, seek the recovery of all expenses recoverable under Section 11470.1 from:

(1)Any person who manufacturers or cultivates a controlled substance or its precursors in violation of this division.

(2)Any person who aids and abets or who knowingly profits in any manner from the manufacture or cultivation of a controlled

substance or its precursors on property owned, leased, or possessed by the defendant, in violation of this division. The trier of fact shall make an award of expenses, if proven, which shall be enforceable as any civil judgment. If probation is granted, the court may order payment of the expenses as a condition of probation. All expenses recovered pursuant to this section shall be remitted to the law enforcement agency which incurred them.

(b)The prosecuting attorney may, in conjunction with the criminal proceeding, file a petition for recovery of expenses with the superior court of the county in which the defendant has been charged with the underlying offense. The petition shall allege that the defendant had manufactured or cultivated a controlled substance in violation of Division 10 (commencing with Section 11000) of the Health and Safety Code and that expenses were incurred in seizing, eradicating, or destroying the controlled substance

or its precursors. The petition shall also state the amount to be assessed. The prosecuting attorney shall make service of process of a notice of that petition to the defendant.

(c)The defendant may admit to or deny the petition for recovery of expenses. If the defendant admits the allegations of the petition, the court shall rule for the prosecuting attorney and enter a judgment for recovery of the expenses incurred.

(d)If the defendant denies the petition or declines to admit to it, the petition shall be heard in the superior court in which the underlying criminal offense will be tried and shall be promptly heard following the defendant’s conviction on the underlying offense. The hearing shall be held either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties.

(e)At the hearing, the burden of proof as to the amount of expenses recoverable shall be on the prosecuting attorney and shall be by a preponderance of the evidence.

(f)For the purpose of discharge in bankruptcy, a judgment for recovery of expenses under this section shall be deemed to be a debt for willful and malicious injury by the defendant to another entity or to the property of another entity.

§ 11470.3

Added by Stats. 1988, Ch. 1358, Sec. 2.

(a)Section 11470 shall be applicable to property owned by, or in the possession of, minors.

(b)The procedures for the forfeiture of property that comes within Section 11470 shall be applicable to minors.

(c)Notwithstanding the provisions of this chapter, if a petition has been filed alleging that the minor is a person described in Section 602 of the Welfare and Institutions Code because of a violation which is the basis for the seizure and forfeiture of property under this chapter, any related

forfeiture hearing shall be continued until the adjudication of the petition. The forfeiture hearing shall not be conducted in juvenile court.

§ 11470.4

Added by Stats. 1988, Ch. 1249, Sec. 1.

The provisions of this chapter apply to any minor who has been found to be a person described in Section 602 of the Welfare and Institutions Code because of a violation of Section 11351, 11351.5, 11352, 11355, 11366, 11366.5, 11366.6, 11378.5, 11379, 11379.5, 11379.6, or 11382.

§ 11471

Amended by Stats. 1994, Ch. 314, Sec. 4. Effective August 19, 1994.

Property subject to forfeiture under this division may be seized by any peace officer upon process issued by any court having jurisdiction over the property. Seizure without process may be made if any of the following situations exist:

(a)The seizure is incident to an arrest or a search under a search warrant.

(b)The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction

or forfeiture proceeding based upon this division.

(c)There is probable cause to believe that the property is directly or indirectly dangerous to health or safety.

(d)There is probable cause to believe that the property was used or is intended to be used in violation of this division.

(e)Real property subject to forfeiture may not be seized, absent exigent circumstances, without notice to the interested parties and a hearing to determine that seizure is necessary to preserve the property pending the outcome of the proceedings. At the hearing, the prosecution shall bear the burden of establishing that probable cause exists for the forfeiture of the property and that seizure is necessary to preserve the property pending the outcome of the forfeiture proceedings. The court may issue seizure orders pursuant to

this section if it finds that seizure is warranted or pendente lite orders pursuant to Section 11492 if it finds that the status quo or value of the property can be preserved without seizure.

(f)Where business records are seized in conjunction with the seizure of property subject to forfeiture, the seizing agency shall, upon request, provide copies of the records to the person, persons, or business entity from whom such records were seized.

§ 11471.2

Added by Stats. 2016, Ch. 831, Sec. 2. (SB 443) Effective January 1, 2017.

(a)State or local law enforcement authorities shall not refer or otherwise transfer property seized under state law authorizing the seizure of property to a federal agency seeking the adoption of the seized property by the federal agency for proceeding with federal forfeiture under the federal Controlled Substances Act. Nothing in this section shall be construed to prohibit the federal government, or any of its agencies, from seizing property, seeking forfeiture under federal law, or sharing federally forfeited property with state or local law enforcement agencies when those state or local agencies work with federal agencies in joint investigations arising out of federal law or federal joint task forces comprised of federal

and state or local agencies. Nothing in this section shall be construed to prohibit state or local law enforcement agencies from participating in a joint law enforcement operation with federal agencies.

(b)Except as provided in this subdivision and in subdivision (c), a state or local law enforcement agency participating in a joint investigation with a federal agency shall not receive an equitable share from the federal agency of all or a portion of the forfeited property or proceeds from the sale of property forfeited pursuant to the federal Controlled Substances Act unless a defendant is convicted in an underlying or related criminal action of an offense for which property is subject to forfeiture as specified in Section 11470 or Section

11488, or an offense under the federal Controlled Substances Act that includes all of the elements of an offense for which property is subject to forfeiture as specified in Sections 11470 and 11488. In any case in which the forfeited property is cash or negotiable instruments of a value of not less than forty thousand dollars ($40,000) there shall be no requirement of a criminal conviction as a prerequisite to receipt by state or local law enforcement agencies of an equitable share from federal authorities.

(c)If the defendant has been arrested and charged in an underlying or related criminal action or proceeding for an offense described in subdivision (b) and willfully fails to appear as required, intentionally flees to evade prosecution, or is deceased, there shall be no

requirement of a criminal conviction as a prerequisite to receipt by state or local law enforcement agencies of an equitable share from federal authorities.

§ 11471.5

Added by Stats. 1987, Ch. 924, Sec. 1.5. Effective September 22, 1987.

A peace officer making a seizure pursuant to Section 11471 shall notify the Franchise Tax Board where there is reasonable cause to believe that the value of the seized property exceeds five thousand dollars ($5,000).

§ 11472

Added by renumbering Section 11473 by Stats. 1980, Ch. 1019.

Controlled substances and any device, contrivance, instrument, or paraphernalia used for unlawfully using or administering a controlled substance, which are possessed in violation of this division, may be seized by any peace officer and in the aid of such seizure a search warrant may be issued as prescribed by law.

§ 11473

Amended by Stats. 1994, Ch. 979, Sec. 2. Effective January 1, 1995.

(a)All seizures under provisions of this chapter, except seizures of vehicles, boats, or airplanes, as specified in subdivision (e) of Section 11470, or seizures of moneys, negotiable instruments, securities, or other things of value as specified in subdivision (f) of Section 11470, shall, upon conviction of the owner or defendant, be ordered destroyed by the court in which conviction was had.

(b)Law enforcement may request of the court that certain uncontaminated science

equipment be relinquished to a school or school district for science classroom education in lieu of destruction.

§ 11473.5

Amended by Stats. 1994, Ch. 979, Sec. 3. Effective January 1, 1995.

(a)All seizures of controlled substances, instruments, or paraphernalia used for unlawfully using or administering a controlled substance which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant.

(b)If the court finds that the property was not lawfully possessed by the defendant, law enforcement may request of the court that certain uncontaminated instruments or paraphernalia be relinquished to a school or school district for science classroom education in lieu of destruction.

§ 11474

Amended by Stats. 2021, Ch. 70, Sec. 105. (AB 141) Effective July 12, 2021.

A court order for the destruction of controlled substances, instruments, or paraphernalia pursuant to the provisions of Section 11473 or 11473.5 may be carried out by a police or sheriff’s department, the Department of Justice, the Department of the California Highway Patrol, the Department of Cannabis Control, or the Department of Alcoholic Beverage Control. The court order shall specify the agency responsible for the destruction. Controlled substances, instruments, or paraphernalia not in the possession of the designated agency at the time the order of the court is issued shall be delivered to the designated agency for destruction in compliance with the order.

§ 11475

Added by Stats. 1972, Ch. 1407.

Controlled substances listed in Schedule I that are possessed, transferred, sold, or offered for sale in violation of this division are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in Schedule I, which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.

§ 11476

Added by Stats. 1972, Ch. 1407.

Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this division, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.

§ 11477

Amended by Stats. 1980, Ch. 1019.

The failure, upon demand by a peace officer of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

§ 11478

Amended by Stats. 2017, Ch. 27, Sec. 153. (SB 94) Effective June 27, 2017.

Cannabis may be provided by the Attorney General to the heads of research projects which have been registered by the Attorney General, and which have been approved by the research advisory panel pursuant to Section 11480.

The head of the approved research project shall personally receipt for such quantities of cannabis and shall make a record of their disposition. The receipt and record shall be retained by the Attorney General. The head of the approved research project shall also, at intervals and in the manner required by the research advisory panel, report the progress or conclusions of the research project.

§ 11479

Amended by Stats. 2017, Ch. 27, Sec. 154. (SB 94) Effective June 27, 2017.

Notwithstanding Sections 11473 and 11473.5, at any time after seizure by a law enforcement agency of a suspected controlled substance, except in the case of growing or harvested cannabis, that amount in excess of 10 pounds in gross weight may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. In the case of growing or harvested cannabis, that amount in excess of two pounds, or the amount of cannabis a medicinal cannabis patient or designated caregiver is authorized to possess by ordinance in the city or county where the cannabis was seized, whichever is greater, may be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:

(a)At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed. These samples shall be in addition to the 10 pounds required above. When the suspected controlled substance consists of growing or harvested cannabis plants, at least one 2-pound sample or a sample in the amount of medicinal cannabis a medicinal cannabis patient or designated caregiver is authorized to possess by ordinance in the city or county where the cannabis was seized, whichever is greater, shall be retained. This sample may include stalks, branches, or leaves. In addition, five representative samples of leaves or buds shall be retained for evidentiary purposes from the total amount of suspected controlled substances to be destroyed.

(b)Photographs and videos have been taken that reasonably and accurately

demonstrate the total amount of the suspected controlled substance to be destroyed.

(c)The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating that weight after dimensional measurement of the total suspected controlled substance.

(d)The chief of the law enforcement agency has determined that it is not reasonably possible to preserve the suspected controlled substance in place, or to remove the suspected controlled substance to another location. In making this determination, the difficulty of transporting and storing the suspected controlled substance to another site and the storage facilities may be taken into consideration.

Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be

filed within 30 days in the court that has jurisdiction over any pending criminal proceedings pertaining to that suspected controlled substance, reciting the applicable information required by subdivisions (a), (b), (c), and (d) together with information establishing the location of the suspected controlled substance, and specifying the date and time of the destruction. In the event that there are no criminal proceedings pending that pertain to that suspected controlled substance, the affidavit may be filed in any court within the county that would have jurisdiction over a person against whom those criminal charges might be filed.

§ 11479.1

Amended by Stats. 2002, Ch. 787, Sec. 4. Effective January 1, 2003.

(a)Notwithstanding the provisions of Sections 11473, 11473.5, and 11479, at any time after seizure by a law enforcement agency and identification by a forensic chemist or criminalist of phencyclidine, or an analog thereof, that amount in excess of one gram of a crystalline substance containing phencyclidine or its analog, 10 milliliters of a liquid substance containing phencyclidine or its analog, two grams of plant material containing phencyclidine or its analog, or five hand-rolled cigarettes treated with phencyclidine or its analog, may

be destroyed without a court order by the chief of the law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:

(1)At least one gram of a crystalline substance containing phencyclidine or its analog, 10 milliliters of a liquid substance containing phencyclidine or its analog, two grams of plant material containing phencyclidine or its analog, or five hand-rolled cigarettes treated with phencyclidine or its analog have been taken as samples from the phencyclidine or analog to be destroyed.

(2)Photographs have been taken which reasonably demonstrate the total amount of phencyclidine or its analog to be destroyed.

(3)The gross weight of the phencyclidine or its analog has been determined by actually

weighing the phencyclidine or analog.

(b)Subsequent to any destruction of phencyclidine or its analog, an affidavit shall be filed within 30 days in the court which has jurisdiction over any pending criminal proceedings pertaining to that phencyclidine or its analog, reciting the applicable information required by paragraphs (1), (2), and (3) of subdivision (a), together with information establishing the location of the phencyclidine or analog and specifying the date and time of the destruction. In the event that there are no criminal proceedings pending which pertain to that phencyclidine or analog, the affidavit may be filed in any court within the county which would have jurisdiction over a person against whom these criminal charges might be filed.

§ 11479.2

Amended by Stats. 2017, Ch. 27, Sec. 155. (SB 94) Effective June 27, 2017.

Notwithstanding the provisions of Sections 11473, 11473.5, 11474, 11479, and 11479.1, at any time after seizure by a law enforcement agency of a suspected controlled substance, except cannabis, any amount, as determined by the court, in excess of 57 grams may, by court order, be destroyed by the chief of a law enforcement agency or a designated subordinate. Destruction shall not take place pursuant to this section until all of the following requirements are satisfied:

(a)At least five random and representative samples have been taken, for evidentiary purposes, from the total amount of suspected controlled substances to be destroyed. Those samples shall be in addition to the 57 grams required above and each sample shall weigh not less than one

gram at the time the sample is collected.

(b)Photographs have been taken which reasonably demonstrate the total amount of the suspected controlled substance to be destroyed.

(c)The gross weight of the suspected controlled substance has been determined, either by actually weighing the suspected controlled substance or by estimating such weight after dimensional measurement of the total suspected controlled substance.

(d)In cases involving controlled substances suspected of containing cocaine or methamphetamine, an analysis has determined the qualitative and quantitative nature of the suspected controlled substance.

(e)The law enforcement agency with custody of the controlled substance sought to be destroyed has filed a written motion for the order of

destruction in the court which has jurisdiction over any pending criminal proceeding in which a defendant is charged by accusatory pleading with a crime specifically involving the suspected controlled substance sought to be destroyed. The motion shall, by affidavit of the chief of the law enforcement agency or designated subordinate, recite the applicable information required by subdivisions (a), (b), (c), and (d), together with information establishing the location of the suspected controlled substance and the title of any pending criminal proceeding as defined in this subdivision. The motion shall bear proof of service upon all parties to any pending criminal proceeding. No motion shall be made when a defendant is without counsel until the defendant has entered his or her plea to the charges.

(f)The order for destruction shall issue pursuant to this section upon the motion and affidavit in support of the order, unless within 20 days after

application for the order, a defendant has requested, in writing, a hearing on the motion. Within 10 days after the filing of that request, or a longer period of time upon good cause shown by either party, the court shall conduct a hearing on the motion in which each party to the motion for destruction shall be permitted to call and examine witnesses. The hearing shall be recorded. Upon conclusion of the hearing, if the court finds that the defendant would not be prejudiced by the destruction, it shall grant the motion and make an order for destruction. In making the order, the court shall ensure that the representative samples to be retained are of sufficient quantities to allow for qualitative analyses by both the prosecution and the defense. Any order for destruction pursuant to this section shall include the applicable information required by subdivisions (a), (b), (c), (d), and (e) and the name of the agency responsible for the destruction. Unless waived, the order shall provide for a 10-day delay prior

to destruction in order to allow expert analysis of the controlled substance by the defense.

Subsequent to any destruction of a suspected controlled substance pursuant to this section, an affidavit shall be filed within 30 days in the court which ordered destruction stating the location of the retained, suspected controlled substance and specifying the date and time of destruction.

This section does not apply to seizures involving hazardous chemicals or controlled substances in mixture or combination with hazardous chemicals.

§ 11479.5