Herein, the original Superior Court file, submitted in lieu of the Clerk’s Transcript (see Calif. Rules of Court, Rule 5.2), is referred to as “CT.”

Code of Civil Procedure section 526a provides a resident taxpayer with standing to obtain declaratory and injunctive relief on the grounds that a statute or ordinance is unconstitutional on its face or as applied. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084-1086; White v. Davis (1975) 13 Cal.3d 757, 762-763; Connerly v. State Personnel Bd. (2001) 92 Cal. App. 4th 16, 29-31.)

^[3]

Default cases are commonly referred to as “administrative” or “non-judicial” forfeitures. (See Nasir v. Sacramento County Off. of the Dist. Atty. (1992) 11 Cal. App. 4th 976, 989-990 [“Nasir”].)

^[4]

Part XXV allows the San Joaquin District Attorney to prosecute forfeiture actions and receive forfeiture revenue, but to date he has not done so. (Comp., ¶ 9.)

^[5]

The trial court sustained respondents’ demurrer as to “all claims and causes of action alleged in the First Amended Complaint because, as pled, the statute of limitations has run and ... Part XXV ... is constitutional on its face.” (CT 74-75, 81-82 [emphasis added].) The trial court thus left open the possibility that if Part XXV was challenged as applied, it might be found unconstitutional and the statute of limitations would not bar suit. The court, however, sustained the demurrer without leave to amend (ibid); thereby preventing appellant from proceeding more expressly on an as-applied basis.

If granted leave to amend (see Zelig v. County of Los Angeles (2002) 27 Cal. 4th 1112, 1226; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967), appellant would allege and prove that Part XXV is applied only during “sting” operations involving undercover officers posing as drug dealers or prostitutes. (See SMC §5-1000.) The officers accept solicitations for sexual favors and effect an arrest without the performance of any sexual act; or offer to sell less than an ounce of real or facsimile marijuana (such as oregano)– which is an infraction carrying a maximum penalty of $50.00 (Health & Safety Code §11357, subd. (b) [$100.00 fine for possession of less than an ounce], and Pen. Code §21 [½ the penalty for an attempt]) – or in rare instances offer a “dime bag” of facsimile cocaine or methamphetamine, and make an arrest before the driver has any opportunity to ingest or attempt to ingest the substance purchased.

Appellant would further allege and prove that all vehicle seizures under Part XXV occur pursuant to subsection (b) of SMC section 5-1003, based on a non-judicial determination of probable cause made by the Stockton PD at the time of the “sting.” The Stockton PD has seized vehicles valued at over $15,000.00 and the City Attorney has demanded and obtained monetary settlements of over $5,000.00 to release vehicles. The Stockton PD and City Attorney have done so when the vehicles were owned in full or part by entirely innocent third parties – including lien holders, finance companies, rental companies, banks, common carriers and employers – and when the offender had no prior criminal history or only a minimal criminal history unrelated to the offense giving rise to forfeiture under SMC section 5-1000.

^[6]

Appellant does not proceed on the Fourth or Seventh Causes of Action. (Comp., ¶¶ 30-34, 49-53.) As to Eighth Cause of Action claiming that Part XXV is preempted by state law and Horton v. City of Oakland (2000) 82 Cal.App.4th 580 was wrongly decided (Comp., ¶¶ 54-59), the court may avoid the constitutional issues presented by the remaining causes of action if it accepts the Eighth Cause of Action as valid. Appellant, however, lacks adequate space to properly address the issue, so he will pursue the claim only if the court requests or grants leave to present supplemental briefing on the issue.

^[7]

Policing for Profit has been cited in: United States v. Siriprechapong (N.D. CA 1998) 181 F.R.D. 416, 419 [1998 U.S. Dist. LEXIS 17405]; United States v. One 1997 E35 Ford Van (N.D. Ill., E. Div. 1999) 50 F. Supp. 2d 789, 796; United States v. One Lot of United States Currency Totaling $14,665 (Dist. of Mass. 1998) 33 F. Supp. 2d 47, 60; and State v. Nunez (N.M. Supreme Ct. 1999) 129 N.M. 63, 69 [2 P.3d 264]. In 2001, the authors followed up with an update on the status of forfeiture law and the constitutional issues associated therewith. (Blumenson & Nilsen, The Next Stage of Forfeiture Reform, 14 Federal Sentencing Reporter No. 2, p. 76 (Sept./Oct. 2001).)

^[8]

See also United States v. Currency Totaling $14,665 (D. Mass. 1998) 33 F.Supp.2d 47, 60 [“Our nation’s drug forfeiture system is drawing increasing and exceedingly sharp criticism from scholars and commentators[, and ...] I am obliged to add my voice to this growing chorus of dissent.”]; United States v. One 1995 Chevrolet Tahoe (W.D. Tenn. 1999) 108 F. Supp. 2d 954, 958, fn. 5 [noting the “extensive amount of criticism that has been brought against the civil forfeiture statutes, criticizing their constitutionality”]; Buritica v. United States (N.D. CA 1998) 8 F. Supp. 2d 1188, 1193-1195 [expressing “grave concerns” about the constitutionality of a policy which gives financial rewards, no matter how small, to employees who detect and seize certain property]; (Congressman) Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? (1995) [forfeiture impinges upon constitutional rights and the financial conflict of interest can only be cured by depositing forfeiture revenue into the General Fund].

^[9]

“If the property was used in commerce, then each day spent fighting to establish a claim was another day's business lost. Consequently in colonial admiralty court, officials and property owners struck deals that placed the owner in the peculiar position of paying the state for the return of property.” (Policing for Profit, supra, 65 U. Chi. L. Rev. 35, 77 at endnote 149.)

^[10]

The Supreme Court has declared that in an action under Code of Civil Procedure section 526a it is immaterial that “the illegal procedures actually permit a saving of tax funds.” (Wirin v. Parker, supra, 48 Cal.2d 890, 894 [bold and underlining added]; Kehoe v. City of Berkeley, supra, 76 Cal.App.3rd 667, 669.) The mere expending of the time by paid employees of the Stockton PD and City Attorney in enforcing Part XXV (see Comp., ¶¶ 7-8) constitutes an unlawful use of funds which may be enjoined under Code of Civil Procedure section 526a. (Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504-505, Blair v. Pitchess, supra, 5 Cal.3d 258, 267-268; Kehoe, supra, 76 Cal.App.3rd 667, 670.)

^[11]

Eubanks concerned the disqualification of the district attorney in a criminal proceeding pursuant to the recusal provisions of Penal Code section 1424, but the standard articulated in Eubanks mirrors that required by due process (see case cited in Eubanks, supra, 14 Cal.4th at p. 596 and fn. 8; Clancy, supra, 39 Cal. 3d 740, 746-749; Young, supra, 481 U.S. at pp. 814-815 (Blackmun, J. conc.) [interested prosecutor violates due process]; Brotherhood of Locomotive Firemen & Enginemen v. United States (5^th Cir. 1969) 411 F.2d 312, 319 [appointment of an interested prosecutor as a due process violation], cited with approval in Young, supra, 481 U.S. at p. 808, fn. 19; and see Hambarian v. Superior Court (2002) 27 Cal.4th 826, 833, fn. 4; People v. Snow (2003) 30 Cal. 4th 43, 86, fn. 12); and the due process and statutory disqualification standards for criminal proceedings apply equally to nuisance abatement/forfeiture proceedings because they share many similarities and often coincide with criminal prosecutions (Clancy, supra, 39 Cal. 3d 740, 747-749) and have long been considered “quasi-criminal in character," whose "object, like a criminal proceeding, is to penalize for the commission of an offense against the law." (One 1958 Plymouth Sedan v. Pennsylvania (1965) 380 U.S. 693, 700 [14 L. Ed. 2d 170, 85 S. Ct. 1246]; see also Board of Supervisors v. Simpson (1951) 36 Cal. 2d 671, 674-675.)

^[12]

To establish a disqualifying interest, appellant need not show that the pecuniary bias claimed to exist has manifested itself in overtly prejudiced or clearly erroneous seizures or forfeiture actions, or grossly unfair monetary settlements in lieu of forfeiture. (See Brown v. Vance (5th Cir. 1981) 637 F.2d 272, 282-284; Haas v. County of San Bernardino (2002) 27 Cal. 4th 1017, 1029-1031, and fn. 19 [“Hass”].) The test, in sum, is leveled at the system, not the integrity of the City Attorney, Stockton PD, or their employees. (Brown v. Vance, supra, 637 F.2d at p. 284; Haas, supra, 27 Cal. 4th at pp. 1030-1031, fn. 19; and see Rose v. Village of Peninsula (N.D. OH 1995) 875 F. Supp. 442, 451.) This is so because the requirement of due process of law in forfeiture proceedings “is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry [on the challenged statutory scheme] without danger of injustice.” (Tumey v. Ohio (1927) 273 U.S. 510, 532 [71 L. Ed. 749, 47 S. Ct. 437] [hereinafter “Tumey”].)

^[13]

An interested prosecutor “calls into question, and therefore requires scrutiny of, the conduct of an entire prosecution, rather than simply a discrete prosecutorial decision.” (Young, supra, 481 U.S. at p. 812; see also Eubanks, supra, 14 Cal.4th at p. 593.) Resulting prejudice can “at least as easily flow from an act of omission as from one of commission, from discretion withheld as from discretion exercised” (People v. Zimmer, supra, 51 N.Y.2d 390, 393-94), and a prosecution “contains a myriad of occasions for the exercise of discretion, each of which goes to shape the record in a case, but few of which are part of the record.” (Young, supra, 481 U.S. at pp. 812-813; and see id. at p. 807 [numerous decisions “critical to the conduct of a prosecution” are “made outside the supervision of the court”].)

^[14]

In Bennis v. Michigan, supra, 516 U.S. 442, a heavily divided Supreme Court found that due process was not offended by the forfeiture (via nuisance abatement) of a wife’s interest in an automobile used by her husband to solicit an act of prostitution. In her concurring opinion, Justice Ginsburg stated the court was not sanctioning or condoning “an experiment to punish innocent third parties.” (516 U.S. at p. 458.) She reached this conclusion on the basis that the vehicle in question belonged to John Bennis (the offender) as much as it did to his wife, Tina Bennis. Thus, this was not a case of third party use. (Id., p. 457.)

What can be gleaned from Bennis is not that the U.S. Constitution provides no protection to “innocent owners,” but that five justices (the four dissenters plus Justice Ginsburg) believe forfeiture of the property of a truly innocent owner is constitutionally impermissible. Moreover, the due process clause of the state constitution operates independently of and often provides much greater protection than its federal counterpart. (People v. Comingore (1977) 20 Cal. 3d 142, 145; People v. Brisendine (1975) 13 Cal. 3d 528, 548-550.) A California court is thus free to reject Bennis and to conclude that legislative decree and the overwhelming weight of authority in other states compels the conclusion that due process under the California Constitution protects “innocent owners” (including spouses) from forfeiture under Part XXV because, in sum, “federal law is less respectful of the rights of innocent people” than we are in California. (State v. Nunez (N.M. Supreme Ct. 1999) 129 N.M. 63, 71, 92-93 [2 P.3d 264] [rejecting Bennis under New Mexico’s due process clause]; see also People v. One 1953 Buick 2-Door (1962) 57 Cal. 2d 358 [discussing how legislative changes effect a lien-holder’s assertion of an “innocent owner” defense under California law].)

In this respect, it is important for the court to appreciate that Bennis was decided by a bare majority over passionate dissents from Justices Stevens, Souter and Breyer (jointly) and Kennedy (separately); Justice Thomas’ concurrence was hardly a ringing endorsement of the outcome (Bennis, supra, 516 U.S. at p. 454 [“This case is ultimately a reminder that the Federal Constitution does not prohibit everything that is intensely undesirable”]); and Justice Ginsburg’s concurrence refused to sanction the forfeiture of property based on the conduct of a non-owner (id., pp. 457-458 [the court is not sanctioning or condoning “an experiment to punish innocent third parties”]); and both the outcome the case and reasoning of the majority have been the subject of extensive critical commentary. (People v. $9,632.50 United States Currency (1998) 64 Cal.App.4th 163, 172, fn. 6.)

Many state courts have departed from Bennis when construing the due process protections afforded by their own state constitutions (see, e.g., State v. Nunez, supra, 129 N.M. 63, 71, 92-93 [2 P.3d 264] Threlkeld v. State of Mississippi (Miss. Supreme Ct. 1991) 586 So.2d 756; State v. 1979 Pontiac Trans Am (N.J. Supreme Ct. 1985) 487 A.2d 722, 727; Alaska v. Cessna Finance Corp. (Alaska Supreme Ct. 1981) 626 P.2d 104, 110-115), and other state courts have noted their concerns but avoided the constitutional issue by interpreting existing state statutes to allow for an “innocent owner” defense. (See, e.g., State v. Shimits (1984) 10 Ohio St. 3d 83, 461 N.E.2d 1278; Barra v. Wiebler (1984) 127 Ill. App. 3d 488, 468 N.E.2d 1007; 1979 Pontiac Trans Am, supra, 487 A.2d 722, 727; and see In re One 1986 Pontiac Firebird (Del. Superior Ct. 1996) 1996 Del. Super. LEXIS 156.)

Federal law expressly provides an “innocent owner” defense (see, e.g., former 18 U.S.C. @ 981(a)(2) – replaced by the Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 [codified as amended at 18 U.S.C. @ 983, subd. (d)]; 21 U.S.C. @ 881(4)(C) and (6), (7)), and California has expressly codified its intent to protect innocent owners:

“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.” (Health & Safety Code §11469, subd. (j).)

In line with this intent, an “innocent owner” defense is available under all of California’s forfeiture and impound statutes. (See Health & Safety Code §§11470, subd. (g), and 11488.5, subd. (e); Fish & Game Code §12157, subd. (2); Pen. Code §§186.4, subd. (a), 186.6, subd. (d), 186.7, subd. (b), and 186.8, subd. (a); Veh. Code §§14602.5, 14602.6, subd. (b) [as interpreted by Smith v. City of Santa Rosa (2002) 97 Cal. App. 4th 546], 14602.7, subd. (b)(1)(C), & 14607.6, subds. (a), (c)(5) and (d)(1).) Health & Safety Code section 11490 also provides a blanket exception for property owned by a common carrier or used by an employee acting within the scope of his employment, and similar exceptions are provided in Vehicle Code sections 14602.6 (impound for driving without a valid license), 14602.7 (impound for evading police), 14607.6 (forfeiture for driving without a valid license with a prior conviction) and 23109.2 (impound for engaging in a speed contest).

At this juncture, the court need not decide whether and to what extent the California Constitution protects innocent owners, only to appreciate that the absence of protection for innocent owners gives rise to “substantial” constitutional concerns (see Krimstock, supra, 306 F.3d at pp. 55-56); and the City Attorney is unable to participate in an impartial dialogue because of the substantial pecuniary interests her office and the Stockton PD have in forfeiture. (See, e.g., Eubanks, supra, 14 Cal.4th at pp. 595-596; People v. Barboza, supra, 29 Cal. 3d 375, 380-381.) Indeed, even under the provisions of Part XXV providing innocent third parties with an opportunity to receive all or a share of the proceeds following forfeiture (SMC §5-1008(a)), the City Attorney cannot impartially participate, because the City Attorney and Stockton PD receive all of the money which does not go to third parties. (SMC §5-1008(a)-(d).)

^[15]

Under these cases, the so-called “administrative” or “non-judicial” forfeiture provisions of Part XXV (see Nasir, supra, 11 Cal.App.4th at pp. 983-984) are unconstitutional because they allow the Stockton PD to seize a vehicle without a warrant (SMC §5-1003(b)), entrust the Stockton PD and City Attorney to afford notice to interested parties (SMC §§5-1006(c) and (d)), and then permit the City Attorney to herself determine that proper notice has been afforded and no claims opposing forfeiture have been timely filed; such that she unilaterally declares forfeiture by default (SMC §1006(h)) and awards the proceeds of forfeiture to her office and the Stockton PD. (SMC §5-1008(b)-(d).) This procedure impermissibly allows the City Attorney to act as the decision-maker in cases where she has a financial interest in the outcome. (In re Murchison (1955) 349 U.S. 133 [99 L. Ed. 942, 75 S. Ct. 623]; Spring Valley Water Works v. Schottler (1884)110 U.S. 347, 365 [4 S. Ct. 48; 28 L. Ed. 173].)

Whatever salutary purposes administrative forfeiture procedures may serve, “they are also the most draconian part of the harshest of all our laws respecting the private ownership of personal property” (Nasir, supra, 11 Cal.App.4th at p. 985), and the due process principles which govern their application do not permit individuals to be deprived of their property through the unilateral stroke of a pen by the very party who receives the proceeds from the sale of the property. (Medical Center v. Medical Center Commission, supra, 689 F.2d 693, 699-700.) Because the City Attorney and Stockton PD are financially interested, there must be some type of prove-up by which the court impartially determines that proper service has been effected and forfeiture by default is factually and legally appropriate. (See, e.g., Pen. Code §186.8, subd. (a); Code of Civ. Proc.§§585-587.5; Taliaferro v. Hoogs (1963) 219 Cal.App.2d 559, 560.)

^[16]

Judges and administrative decisions makers must not be in a situation "'which would offer a possible temptation to the average man as a judge to forget the burden of proof required ... or might lead him not to hold the balance nice, clear and true between [the parties].’" (Ward, supra, 409 U.S. 57, 60, quoting Tumey, supra, 273 U.S. 510, 532.)

^[17]

Nothing in Part XXV requires or suggests that the City Attorney or Stockton PD should return surplus budgetary allocations (including forfeiture revenue) to the City’s General Fund, or that normal budgetary allocations will be reduced in proportion to excess forfeiture revenue such that there is no net budgetary increase as a result of forfeiture revenue. (Compare Jerrico, supra, 446 U.S. 238, 246, 250-252.) To the contrary, subsection (d) of SMC section 5-1008 states: “All the funds distributed to the local law enforcement entities or ... City Attorney ... shall not supplant any funds that would ...[otherwise] be made available to support the law enforcement and prosecutorial efforts of these agencies.”

Moreover, Jerrico was decided more than 20 years ago when the state of the economy and budgetary constraints were much different than they are now. The days are long gone when a city attorney or police department in this state could reasonably expect to run a budget surplus. (See People v. Eubanks, supra, 14 Cal. 4th 580, 598, 600 [noting that the funding was limited for the investigation and prosecution of the particular crime at-issue]; and id., at pp. 602-603 (George, C. J. conc.) [the issue is the likely influence upon the financially strapped prosecutor].)

^[18]

The larger the number of vehicles seized and the greater the amount generated from forfeitures and monetary settlements, the higher the financial rewards for the City Attorney and Stockton PD. (See Policing for Profit, supra, 65 U. Chi. L. Rev. pp. 65-66.) These rewards are greatest when a vehicle is quickly released pursuant to a monetary settlement or forfeited by default, so as to keep costs low and eliminate the potential that forfeiture proceeds will be rewarded to third parties. (See SMC §5-1008(a)-(c).) And not coincidentally, this is precisely what the City Attorney does in all cases. (Comp., ¶ 21.)

^[19]

SMC section 5-1008, subsection (a), allows for the discretionary distribution of proceeds to “innocent” third party claimants, but under Part XXV as applied, subsection (a) never comes into play because the City Attorney either forfeits a vehicle by default or negotiates a monetary settlement in lieu of forfeiture. (Comp., ¶¶ 19, 21.) Moreover, on its face, subsection (a) of SMC section 5-1008 suffers from the same fatal flaw as SMC section 5-1008 as a whole, because the forfeiture proceeds which do not go to third parties are allocated to the City Attorney and Stockton PD (MSC §5-1008(b)-(d)); so the City Attorney and Stockton PD act under an insurmountable financial conflict of interest when opposing a third party claim or seeking a specific distribution of proceeds.

^[20]

The court should not presume that because state law allocates forfeiture proceeds to law enforcement and prosecutors (see Health & Safety Code §11489), that SMC section 5-1008 is constitutional. The state scheme provides a host of protections not present in Part XXV, such as limitations on the use of forfeiture proceeds and express admonishments against allowing forfeiture revenue to affect decision-making (H&S §11469); protection for innocent owners and exemptions for community property vehicles (H&S §§11469, subd. (j), 11470, subds. (e) and (g), 11488.5, subd. (e), 11488.6), common carriers and employers (H& S §11490); pre-trial motions for return of property (H&S §11488.4, subds.(g) and (h)); and pendente lite orders. (H&S §11492, subd. (c).) State law also allocates only 10% of forfeiture proceeds to prosecutors and 65% to police, with the remainder going to various state funds and programs (H&S §11489, subd. (b)), rather than splitting the proceeds 50%-50% between police and prosecutor, as occurs under Part XXV. (MSC §5-1008(b)-(d).) And even with these substantial differences, the state scheme is being challenged on pecuniary interest/due process grounds in Samples v. Lockyer, First District Court of Appeal, Div. 2, Case No. Aa102873, Sonoma County Superior Court Case No. 231307.

^[21]

Assuming arguendo that some vehicles have been or will be seized pursuant to a judicial finding of probable cause (cf. fn. 4, ante, p. 5), in the "vast majority of its applications" and certainly "in the generality of cases," vehicles are seized under Part XXV based on a non-judicial finding of probable cause made by the Stockton PD, so due process principles must be applied on that basis. (See California Teachers Assn. v. State of California (1999) 20 Cal. 4th 327, 347; American Academy of Pediatrics v. Lungren (1997) 16 Cal. 4th 307, 342-348 (plur. opn. of George, C. J); Kasler v. Lockyer (2000) 23 Cal. 4th 472, 501-502.)

^[22]

Below, respondents argued that this assessment of the delay between seizure and a hearing was inappropriate in a facial challenge, because it goes beyond the face of Part XXV. But a lengthy delay is clear from a common sense application of the language of the ordinance. (See Krimstock v. Kelly, supra, 306 F.3d at p. 59.) In any event, the alleged delay is appropriate in an as-applied challenge, which appellant also presents. (See Comp., ¶¶ 19, 21.)

^[23]

In the trial court, respondents noted that Krimstock, supra, 306 F.3d at p. 54, fn. 14, cites with approval Health & Safety Code section 11488.5, subdivision (c)(1) – which provides that "forfeiture proceeding shall be set for hearing on a day not less than 30 days [from the submission of a claim opposing forfeiture].” (Emphasis added.) Respondent argued that this shows Krimostock would approve of the nearly identical language in SMC section 5-1007, subsection (b)(1), which provides: “If a verified claim is filed, the forfeiture proceeding shall be set for hearing on a day not less than thirty (30) days therefrom.” (Emphasis added.) But from the context of the discussion and the ultimate holding in Krimstock, it is clear the court misread Health & Safety Code section 11488.5, subdivision (c)(1), as providing for a hearing not more than 30 days after the submission of a claim, rather than not less than 30 days. (See Krimstock, supra, 306 F.3d at pp. 53-54, 59.) Read correctly, Health & Safety Code section 11488.5, subdivision (c)(1), and SMC section 5-1007, subsection (b)(1), do not provide for a timely hearing but instead guarantee at least a 30 day delay between the filing of a claim opposing forfeiture and a hearing; with absolutely no limits on the maximum delay between seizure and a hearing. This is constitutionally inadequate. (Krimstock, supra, 306 F.3d at pp. 53-54; and id. at p. 59 [open ended delays of a month or more do not satisfy constitutional requirements – “The Fourth and Fourteenth Amendments demand a more expeditious determination of a vehicle owner's rights.”].)

Moreover, unlike Part XXV, California’s forfeiture statutes expressly provide for pre-trial probable cause hearings, motions for immediate return of property, and pendente lite release of property (Health & Safety Code §§11488.4, subds. (g) and (h), and11492, subd. (c); and see Krimstock, supra, 306 F.3d at p. 55.)

^[24]

California penal statutes require a probable cause hearing within 10 days in felony cases (Pen. Code §859b) and within 3 days in misdemeanor cases (Pen. Code §991); and permit release from custody on bond or SOR/OR pending trial in both felony and misdemeanor cases (Pen. Code §§1268 et. seq., and 1318, et. seq.) – which the court generally considers at the arraignment no more than 48 hours after a warrantless arrest. (Pen. Code §825.)

^[25]

As these federal and state statutes show, the court in United States v. One 1995 Chevrolet Tahoe, supra, 108 F. Supp. 2d 954, was flat wrong when it said: “In civil matters, probable cause hearings are not conducted. Forfeiture proceedings, brought pursuant to 21 U.S.C. @ 881 are, by definition, civil in nature. Thus, it would seem that a probable cause hearing is not warranted.” (Id., pp. 956-957.) But even being flat wrong on this point, the court still went on to correctly find that a prompt post-seizure probable cause hearing is constitutionally required where, as here, “a seizure has occurred based upon a non-judicial finding of probable cause.” (Id., p. 959, fn. 9.)

^[26]

An “attempt” is generally defined as a specific intent to commit a crime coupled with a direct but ineffectual act toward its commission. (People v. Memro (1985) 38 Cal. 3d 658, 698; Pen. Code §21a.) That definition is subject to improper abuse in the context of Part XXV because the “direct but ineffectual act” towards the commission of an offense set forth in SMC section 5-1000 may well be the act of driving a vehicle to and stopping in an area where prostitutes can be solicited or drugs acquired (see People v. Bower (1979) 24 Cal. 3d 638, 645-646 [noting abuse of the “high crime area” justification]); thereby leaving the pecuniarily interested Stockton PD to decide the driver’s subjective specific intent. (Compare Gates v. Municipal Court (1982) 135 Cal.App.3d 309 with People v. Smith (1978) 44 N.Y.2d 613 [407 N.Y.S.2d 462, 378 N.E.2d 1032].) The danger for abuse this type of system poses to the fair administration of justice has been amply demonstrated by law enforcement. (See Policing for Profit, supra, 65 U. Chi. L. Rev. 35, at p. 82 [United States v. Reese (9^th Cir. 1993) 2 F.3d 870, 874-880, “strikingly illustrates the corrosive operation” of the economic rewards offered by forfeiture and grant laws].)

^[27]

Although Krimstock v. Kelly and Calero-Toledo speak in terms of the government’s interest in preventing property from being sold, destroyed, concealed or removed to another jurisdiction (Calero-Toledo, supra, 416 U.S. 663, 679), in the context of nuisance abatement under Part XXV, appellant fails to see how that interest is entitled to much weight. The idea, after all, is to “abate” the nuisance so as to rid the community of the offense it has caused (SMC §5-1000); and what better method to do so than to destroy the property entirely, sell the vehicle and thereby pass title to someone who has not used it in an offensive manner (which is precisely what Part XXV is designed to do), or remove it from the jurisdiction so that is not being used to engage in illegal activities on the streets of Stockton. Granted, the City Attorney and Stockton PD certainly have a pecuniary interest in preventing vehicles from being sold, destroyed, concealed or removed from the jurisdiction (see SMC §5-1008), but that is the primary problem with Part XXV in the first place.

^[28]

With a bond, the City Attorney and Stockton PD would secure their full stake in a vehicle (as opposed to the partial recompense they presumably receive through a monetary settlement) and the claimant would retain the right to a determination on the merits – thereby ensuring that the initial seizure and threatned forfeiture are legally justified and not undertaken for pecuniary gain. Such a procedure would also bring to an end the City Attorney’s ability to leverage a claimant’s immediate need for his vehicle to force monetary settlements. (Comp., ¶¶ 19, 21.)

^[29]

All of the pertinent information necessary to show probable cause must necessarily already be in the possession of the Stockton PD and City Attorney, because the seizure of a vehicle under Part XXV cannot be justified by evidence acquired after the seizure. (United States v. $191,910.00 in United States Currency, supra, 16 F.3d 1051, 1066-1070; United States v. $31,990 (2^nd Cir. 1993) 982 F.2d 851, 856.) This rule is of constitutional dimensions. (People v. Brown (1955) 45 Cal.2d 640, 643-644; United States v. Di Re (1948) 332 U.S. 581, 595 [92 L.Ed.210, 220, 68 S.Ct. 222].)

^[30]

In assessing the burden on the government it is important to bear in mind that appellant is not suggesting a full hearing on the merits with all of attendant procedural and evidentiary protections normally associated with a trial. She seeks something less, the precise contours of which should be left in the first instance to the trial court. (Krimstock, supra, 306 F.3d at pp. 69-71.)

^[31]

$8,850, supra, 461 U.S. 555, 569, and Von Neumann, supra, 474 U.S. at p. 244, fn. 3, both note that a claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. But here, MSC section 5-1007(b)(3) expressly prohibits joinder or coordination of actions. Further, securing release by virtue of a collateral action involves the same type of delay challenged here, because the vehicle sits in police custody until the equitable action runs its course. (See Krimstock, supra, 306 F.3d at pp. 59-60.)

Additionally, claimants are not entitled to appointed counsel (People v. Madeyski (2001) 94 Cal.App.4th 659) and are generally layman incapable of properly representing themselves. (Faretta v. California (1975) 422 U.S. 806, 835 [95 S. Ct. 2541, 45 L. Ed. 2d 562]; In re Moss (1985) 175 Cal.App.3d 913, 922 [a layman’s limited familiarity with the law no more qualifies him to be his own lawyer “than a case of the gout qualifies one to practice medicine.”]; see also $191,910.00 in United States Currency, supra, 16 F.3d 1051, 1068-1069 [the absence of appointed counsel is a factor which contributes to the overall unfairness of forfeiture proceedings].) Claimants cannot be expected to bring a separate civil lawsuit to obtain release of their vehicle pendente lite. (See People v. Swink (1984) 150 Cal.App.3d 1076, 1081-1083; Granted, claimants could pay an attorney to bring suit, but the burden should be on the City to provide procedural due process in the first instance, not on forfeiture claimants to file expensive lawsuits compelling the City to provide the requisite due process protections. (Krimstock, supra, at pp. 59-60; Luedeke v. Village of New Paltz, supra, 63 F. Supp. 2d 215, 223-224.)

^[32]

Although no published opinion has articulated the precise test applicable to an excessive fines challenge under Article I, Section 17, of the State Constitution, under the heading of “due process” the Supreme Court in Hale v. Morgan (1978) 22 Cal.3d 388, 400-405, applied an analysis very similar to the federal test for excessive fines. Appellant therefore applies the federal test, with the caveat that the state and federal prohibitions on excessive fines and punishments are not coextensive and the state prohibition is generally viewed as providing greater protection. (People v. Anderson (1972) 6 Cal.3d 628, 634.)

^[33]

Although one indicium of the gravity of a criminal offense is the maximum penalty authorized by the legislature, Bajakajian holds that the court should consider the actual penalty imposed on the particular offender as a way to estimate his level of culpability. (Bajakajian, supra, 524 U.S. at 332, fn.14; see also One 1995 Toyota Pick-up Truck, supra, 718 A.2d at p. 566, fn. 16.) If an offender receives only a small percentage of the maximum possible penalty, it is more likely that the forfeiture is constitutionally excessive. (State of Utah v. Real Property at 633 East 640 North, Orem, Utah (Utah Supreme Ct. 2000) 994 P.2d 1254, 1259 [2000 UT 17].)

^[34]

This is consistent with the teachings of cases interpreting the Excessive Fines Clause (see, e.g. State v. Ziepfel (Ohio App. 1995) 107 Ohio App. 3d 646, 669 N.E.2d 299 [forfeiture of motorcycle not grossly disproportionate after driver's fourth offense of driving-under-the-influence]; United States v. Chandler (4^th Cir. 1994) 36 F.3d 358, 365 [one factor in the analysis is whether illegal use of the property "was an isolated event or had been repeated"]; compare State v. Taylor (Tn. Supreme Ct.2002) 70 S.W.3d 717, 723 [court reduces fine imposed by jury following second conviction for driving on suspended license from $27,500 to $3,000; and notes that as reduced fine does not violate the Excessive Fines Clause]) and the Excessive Punishment Clause. (See People v. Romero (2002) 99 Cal. App. 4th 1418 [lengthy prison terms not excessive for recidivists].)

^[35]

Because Part XXV does not require the City Attorney to plead or prove, or the court or jury to expressly find true, any act beyond the commission of a single offense set forth in SMC section 5-1000, any alleged prior criminal history of the offender cannot constitutionally be considered when evaluating the propriety of forfeiture under the Eighth Amendment. (See People v. Wims (1995) 10 Cal. 4th 293; Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L. Ed. 2d 435, 120 S. Ct. 2348]; People v. Kelii (1999) 21 Cal.4th 452.) As such, a facial challenge is appropriate because the circumstances of the offense and the offender are limited to those found on the face of SMC section 5-1000. Additionally, with leave to amend, appellant would have alleged that Part XXV is routinely applied to first time offenders. (See fn. 4, ante, p. 5.)

^[36]

Appellant would venture to say that claims of “innocent ownership” arise in the "vast majority" of cases or at least "in the generality of cases"(see Kasler v. Lockyer, supra, 23 Cal. 4th 472, 501-502), but in any event there are ample cases where “innocent ownership” is involved, so an as-applied challenge would be viable. (See fn.4, ante, p. 5.) Appellant submits, however, that Part XXV violates the excessive fines clause when applied to the worst apple in the bunch, to wit: a 100% owner who personally solicits a prostitute. (See SMC §5-1000.) And since forfeiture is disproportional as to the most culpable offender, it is certainly so as to an innocent third party owner. (Galloway v. City of Albany, Mississippi, supra, 735 So. 2d 407, 413-414.)

^[37]

Which at that time declared that a person "[who] solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view" is guilty of disorderly conduct, a misdemeanor.

^[38]

With respect to actual or attempted acquisition of narcotics under SMC section 5-1000, appellant concedes there are theoretical situations in which the quantity or nature of drugs acquired, or attempted to be acquired, would warrant forfeiture within the bounds of the Excessive Fines Clause. (See, e.g., One (1) 1979 Ford v. State (Miss. Supreme Ct. 1998) 721 So.2d 631 [allowing forfeiture of van used to transport large amount of cocaine with intent to distribute]; Harris v. State (Ala. Supreme Ct. 2001) 821 So. 2d 177 [forfeiture of vehicle permissible where owner engaged in large scale transportation and sales]; In re Property Seized from Chiodo (Iowa Supreme Ct. 1996) 555 N.W.2d 412 [forfeiture permitted where vehicle was used to deal marijuana and owner was not a small time dealer].) Thus, that aspect of SMC section 5-1000 would normally be immune from a facial attack. A facial attack is nonetheless appropriate, however, because it is impossible to conceive of a factual situation in which the quantity and nature of drugs would justify forfeiture under the Eighth Amendment Excessive Fines Clause without qualifying for forfeiture under the Uniform Controlled Substance Act, in which case state preemption would apply. (Cf. Horton, supra, 82 Cal.App.4th at p. 588, fn. 10 [declining to decide whether preemption would apply if an offense qualified for forfeiture under state law but forfeiture was sought under a local ordinance].) In other words, to the extent SMC section 5-1000 is not preempted by state law because it addresses drug buyers and not sellers (Horton, id, 82 Cal.App.4th 580), the penalty of forfeiture violates the Excessive Fines Clause.

^[39]

The court should be mindful that the Excessive Fines Clause claim, while alleged as independently viable, is directly tied to the First and Second Causes of Action. Part XXV sets a net so large that it catches vehicles which cannot possibly be forfeited under even the most strained interpretation of the Excessive Fines Clause, leaving the court to step in to say which vehicles may constitutionally be forfeited and which must be released. (see United States v. Reese, supra, 92 U.S. 214, 221.) But before the court can step in, the pecuniarily interested City Attorney uses the leverage of retention pendente lite and the threat of an unconstitutional forfeiture to secure monetary settlements. (Comp., ¶¶ 19, 21.)

Respondents attempt to portray this system as a fair one in which claimants “voluntarily” relinquish their right to challenge the constitutionality of the seizure and threatened forfeiture, but the pecuniarily interested City Attorney is simply engaging in “pistol-to-the-head” economic coercion. (See Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, 1153-1155.)