Filed 12/24/13 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ADOLFO CUEVAS,

Petitioner,

v.

THE SUPERIOR COURT OF TULARE 

COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

F064886

(Super. Ct. No. VCF252111)

ORDER MODIFYING OPINION AND 

DENYING REHEARING

[No Change in Judgment]

THE COURT:

It is ordered that the opinion filed herein on December 5, 2013, be modified as 

follows:

1. In the second full paragraph on page 16, after the sentence ending “or the 

Attorney General,” add the following as footnote 8:

8We do not hold that Officer Moreno, if the forfeiture decision had 

been made by an appropriate prosecuting agency, could not have properly 

served the notice of forfeiture on behalf of the prosecuting agency in the 

role of process server. (See, e.g., Code Civ. Proc., § 414.10.) Rather, his 

service of the notice of forfeiture was invalid because an appropriate 

prosecuting agency did not initiate it, and neither he nor the Tulare Police 
2.

Department had the authority to initiate the process or serve notice in their 

own right.

There is no change in the judgment. The petition for rehearing filed by real party 

in interest is denied.

___________________________

PEÑA, J.

WE CONCUR:

________________________________

LEVY, Acting P.J.

________________________________

CORNELL, J.
Filed 12/5/13 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ADOLFO CUEVAS,

Petitioner,

v.

THE SUPERIOR COURT OF TULARE 

COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

F064886

(Super. Ct. No. VCF252111)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Gary L. Paden, Judge.

Michael B. Sheltzer, Public Defender, Lisa J. Bertolino, Assistant Public 

Defender, Timothy B. Rote, Deputy Public Defender; and Matthew E. Baker for 

Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Leanne 

LeMon, and Lewis A. Martinez, Deputy Attorneys General, for Real Party in Interest.

-ooOoo-
2.

INTRODUCTION

This case concerns the law of asset forfeiture and, more particularly, the 

procedures regarding forfeiture of property connected with unlawful drug activity, as 

governed by sections 11470 through 11489 of the Health and Safety Code. The questions 

presented are (1) may a policing agency rather than a prosecuting agency initiate these 

forfeiture proceedings; and (2) is substantial compliance or something less than strict 

compliance with the notice requirements of the forfeiture statutes sufficient to lawfully 

uphold the forfeiture? Our answer to both questions is “no.”

Petitioner Adolfo Cuevas filed a petition for writ of mandate asking this court to 

direct the Superior Court of Tulare County to vacate its order denying his motion to 

compel the return of personal property. The personal property sought is cash seized from 

him by Tulare police officers and purportedly forfeited to the state through nonjudicial 

administrative forfeiture proceedings. Generally, he contends (1) the forfeiture 

proceedings were invalid because they were initiated by the City of Tulare Police 

Department and not a proper prosecutorial agency; (2) because the notice of nonjudicial 

forfeiture proceedings was not served in compliance with the applicable statutes, the 

notice was defective in the first instance; and (3) the notice was facially invalid because it 

failed to provide the appraised value of his property, reflected an incorrect location of the 

property’s seizure, and referenced a “forfeitable” offense despite the fact he was charged 

with a “nonforfeitable” offense. We will grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner and his friend Christian Romero-Aguirre borrowed the car of 

petitioner’s cousin on February 10, 2011. Around 3:00 p.m., they were parked at a 

Tulare shopping mall when the car’s alarm went off.

Three Tulare police officers responded to the scene and began questioning 

petitioner and Aguirre. While Sergeant Machado contacted petitioner’s cousin to confirm 

ownership, Officers Hastings and Lopez conducted patdown searches of both men. The 

officers found approximately $7,014.37 in petitioner’s pockets and $5,862.62 in 
3.

Aguirre’s pockets. With the assistance of a canine, an additional $3,990 was found in a 

space behind the car’s dashboard, for a total of $16,866.99 discovered. The officers 

seized the money, photographed it, placed it in a plastic bag, and transported it to the 

police station, along with petitioner and Aguirre, for further investigation.

A second search of petitioner’s wallet at the police station uncovered a folded 

five-dollar bill with trace amounts of methamphetamine (0.42 grams including packaging 

material). During four hours of interrogation, petitioner denied any knowledge of the 

methamphetamine. Regarding the cash found on his person, petitioner explained he had 

recently sold a Chevy Tahoe for $5,500 and the remainder of the money comprised his 

savings. He does not trust banks and regularly carries his savings with him when he is 

away from home.

At some point during the interrogation, another officer, Officer Moreno, gave 

petitioner a City of Tulare Police Department “Notice of Nonjudicial Forfeiture 

Proceedings” form he had prepared listing “$16,871.99” as having been seized at “260 S. 

M St.,” the location of the police station, “due to violations of California Health and 

Safety Code Section(s) 11379 H & S.”1 The form warned:

“Pursuant to ... Section 11488.4, proceedings to forfeit this property 

administratively are underway. If you have a legal interest in this property, 

you must, within 30 days of your actual receipt of this notice, file a verified 

claim, stating the nature and extent of your interest with the Clerk of the 

Superior Court of the County of Tulare, Room 201, Visalia, California 

93291. (Please use case number TG11–1144.) You must serve an 

endorsed copy of your claim on the District Attorney of Tulare County, 

Room 224, Courthouse, Visalia, California within 30 days of the filing the 

claim. A claim form is attached to this notice. Claim forms can be 

obtained from the Clerk of the Superior Court, Room 201, Courthouse, 

Visalia, California 93291.

 

1Further statutory references are to the Health and Safety Code, unless otherwise 

indicated.

Section 11379 makes it a crime to transport, import, sell, furnish, administer, or give 

away a controlled substance.
4.

“If your claim is properly filed, the District Attorney will decide 

whether to file a Petition for Forfeiture with the Superior Court to contest 

your claim. If no claim is properly filed within the time allowed, the 

property will be ordered forfeited to the State to be disposed of according to 

law.”

The Notice of Nonjudicial Forfeiture Proceedings form included a proof of 

personal service on petitioner and contained petitioner’s signature acknowledging receipt.

The Tulare police department issued a single receipt in the names of petitioner and 

Aguirre for all amounts of money found, but petitioner signed the department’s 

“Disclaimer of Ownership” form as to Aguirre’s $3,990 and $5,862.62, declaring: “I am 

not the owner of this property; I have no interest in the property and have no claim for its 

return to me.” Above his signature, the Disclaimer of Ownership form provided that 

petitioner was waiving his “right to notice of seizure of this property, and that I do not 

have a right to file a petition or claim for return of the property, since it is not mine.”

2

Petitioner did not file a claim.

On May 2, 2011, the Tulare County District Attorney charged petitioner with a 

single count of unlawful possession of a controlled substance under section 11377, 

subdivision (a).3

On June 23 and 30, 2011, and July 7, 2011, the district attorney placed a notice of 

nonjudicial forfeiture in the Visalia-Times Delta newspaper listing case No. TG11-1144. 

The advisement indicated police seized $16,871.99 from “260 S. M St.” on February 10, 

2011, “due to the violation of ... section 11379.”

On July 26, 2011, the Tulare County District Attorney’s Office executed a 

declaration of nonjudicial forfeiture in case No. TG11-1144. The declaration described 

the property as “$16,871.99 in U.S. Currency” seized from the police department address 

 

2All three forms received by petitioner were prepared by Tulare police officers on police 

department letterhead.

3Unlike section 11379, section 11377 is not a crime for which assets may be forfeited. 

(§ 11470, subd. (f).)
5.

“in connection with violations of ... Section 11379.” The declaration added that “No 

claim was filed for the property within 30 days of actual notice served upon interested 

parties or 30 days from the date of first publication of the forfeiture as required. It is 

hereby declared that the property has been forfeited to the State of California pursuant to 

... Section 11488.4(j).”4

On November 8, 2011, petitioner filed a motion to suppress evidence, alleging he 

had been detained longer than necessary to determine he was lawfully in possession of 

his cousin’s vehicle and that police lacked articulable grounds to transport him to the 

police station. (Pen. Code, § 1538.5.) The district attorney initially opposed the motion, 

but nevertheless moved to dismiss the case on December 9, 2011, before the motion was 

heard.

Petitioner filed a motion pursuant to Penal Code section 1538.5 on March 5, 2012, 

to compel the return of his personal property. He requested an order directing the return 

of his $7,014.37, driver’s license, passport, cell phone, and watch. Petitioner’s points and 

authorities argued the administrative forfeiture was “invalid in the first instance because 

it was initiated by the wrong party and failed to follow the statutorily mandated 

procedures for providing notice.” (Capitalization omitted.) Petitioner also claimed the 

forfeiture was invalid because it was based on unconstitutionally discovered evidence and 

that the money was not linked to any narcotics activity. The district attorney opposed the 

motion as to the currency, describing it as a civil in rem matter not properly before the 

criminal court.5 At a hearing on April 6, 2012, the trial court refused to hear argument on 

 

4There is no indication the declaration was served on petitioner. Yet, subdivision (j) of 

section 11488.4 provides, in pertinent part, that the “prosecuting agency ordering forfeiture 

pursuant to this subdivision shall provide a copy of the declaration of forfeiture to any person 

listed in the receipt given at the time of seizure and to any person personally served notice of the 

forfeiture proceedings.”

5The opposition stated that “[c]ivil asset forfeitures later commenced in Civil Court in 

regards to the monies seized, while criminal prosecution commenced in Criminal Court. The 

Civil Court ruled the monies to have been properly seized and forfeited.” This statement is 

inaccurate and misleading. The forfeiture that occurred here was administrative in nature—it did 
6.

the motion and denied it because the money “was subject to a civil forfeiture 

proceeding.” The trial court nevertheless ordered the return of petitioner’s other personal 

property.

Petitioner subsequently filed a petition for writ of prohibition/mandate with the 

Appellate Division of the Superior Court of Tulare County. On May 24, 2012, a week 

after the writ was filed with this court, the appellate division concluded that because 

petitioner was charged with a felony and the motion to compel the return of property 

“was heard and determined by the trial judge assigned to those felony proceedings, [t]he 

Appellate Panel has no authority to review an order made by a superior court judge in a 

felony proceeding.”

On May 17, 2012, petitioner filed the instant petition with this court. On July 11, 

2012, we directed real party in interest to file an informal response to the petition. 

Accordingly, on July 30, 2012, the People filed a response. Petitioner replied thereto on 

August 14, 2012.

On October 18, 2012, this court issued an order to show cause directing 

respondent to show cause why the relief prayed for should not be granted, and granting 

leave to the People and petitioner to file a written return and reply to the return, 

respectively.

Thereafter, on November 29, 2012, the People filed their written return. On 

December 27, 2012, petitioner filed his reply to the written return.

DISCUSSION

We begin our discussion with a brief recitation of the applicable law.

I. Applicable Law

“A forfeiture proceeding is a civil in rem action in which property is 

considered the defendant, on the fiction that the property is the guilty party. 

[Citations.] Statutes imposing forfeitures are disfavored and are to be 

 

not involve the court—because petitioner’s property was forfeited pursuant to a declaration of 

nonjudicial forfeiture on July 26, 2011.
7.

‘“strictly construed in favor of the persons against whom they are sought to 

be imposed.” [Citation.]’ [Citation.] [¶] A claimant has both a statutory 

and a California constitutional right to a jury trial on civil in rem forfeiture 

proceedings. [Citations.]” (People v. Superior Court (Plascencia) (2002) 

103 Cal.App.4th 409, 418.)

“‘... In order to satisfy due process requirements, the statute 

specifies three types of notice of the forfeiture proceedings. First, the 

person from whose possession the property was seized is entitled to service 

of the petition of forfeiture. [Citation.] Second, “any [other] person who 

has an interest in the seized property” is entitled to service of a notice of 

seizure and intended forfeiture along with instructions on filing a claim. 

[Citation.] And third, notice of forfeiture must be published once a week 

for three consecutive weeks in a newspaper of general circulation in the 

county of seizure. [Citation.]’” (Nasir v. Sacramento County Off. of the 

Dist. Atty. (1992) 11 Cal.App.4th 976, 982 (Nasir).)

Section 11488, subdivision (a) permits a peace officer, after making or attempting 

to make an arrest for certain enumerated violations including section 11379, to “seize any 

item subject to forfeiture under subdivisions (a) to (f), inclusive, of Section 11470.” 

Subdivision (b) of section 11488 requires “Receipts for property seized pursuant to this 

section shall be delivered to any person out of whose possession such property was 

seized ....” And subdivision (c) of this section provides a presumption “that the person to 

whom the receipt for property was issued is the owner thereof.”

Section 11488.1 authorizes the seized property under section 11488 to be held for 

evidence. As to forfeiture proceedings, however, section 11488.1 directs “The Attorney 

General or the district attorney for the jurisdiction involved shall institute and maintain 

the proceedings.”

Finally, section 11488.2 provides that “Within 15 days after the seizure, if the 

peace officer does not hold the property seized pursuant to Section 11488 for evidence or 

if the law enforcement agency for which the peace officer is employed does not refer the 

matter in writing for the institution of forfeiture proceedings by the Attorney General or 

the district attorney pursuant to 11488.1, the officer ... shall return the property to the 

individual designated in the receipt therefor ....”
8.

“The procedures for forfeiture are set forth in sections 11488.4 and 11488.5, and 

contemplate both a judicial and a nonjudicial forfeiture.” (Nasir, supra, 11 Cal.App.4th 

at p. 983.) Section 11488.4, subdivision (a) authorizes “the Attorney General or district 

attorney” to initiate judicial proceedings by filing a civil complaint for forfeiture in the 

superior court. (Nasir, supra, at p. 983.) Meanwhile, “[s]ection 11488.4, subdivision (j), 

creates a procedure for forfeiture without judicial involvement which has become known 

as an ‘administrative’ forfeiture.” (Ibid.) In this case, we are primarily concerned with 

administrative or nonjudicial forfeiture procedures.

Subdivision (j) of section 11488.4 provides as follows:

“The Attorney General or the district attorney of the county in which 

property is subject to forfeiture under Section 11470 may, pursuant to this 

subdivision, order forfeiture of personal property not exceeding twenty-five 

thousand dollars ($25,000) in value. The Attorney General or district 

attorney shall provide notice of proceedings under this subdivision pursuant 

to subdivisions (c), (d), (e), and (f), including:

“(1) A description of the property.

“(2) The appraised value of the property.

“(3) The date and place of seizure or location of any property not 

seized but subject to forfeiture.

“(4) The violation of law alleged with respect to forfeiture of the 

property.

“(5) The instructions for filing and serving a claim with the Attorney 

General or the district attorney pursuant to Section 11488.5 and time limits 

for filing a claim and claim form.

“If no claims are timely filed, the Attorney General or the district 

attorney shall prepare a written declaration of forfeiture of the subject 

property to the state and dispose of the property in accordance with Section 

11489. A written declaration of forfeiture signed by the Attorney General 

or district attorney under this subdivision shall be deemed to provide good 

and sufficient title to the forfeited property. The prosecuting agency 

ordering forfeiture pursuant to this subdivision shall provide a copy of the 

declaration of forfeiture to any person listed in the receipt given at the time 

of seizure and to any person personally served notice of the forfeiture 

proceedings.
9.

“If a claim is timely filed, then the Attorney General or district 

attorney shall file a petition of forfeiture pursuant to this section within 30 

days of the receipt of the claim. The petition of forfeiture shall then 

proceed pursuant to other provisions of this chapter, except that no 

additional notice need be given and no additional claim need be filed.”

The purpose of administrative forfeiture is “to save the government the time and expense 

of a judicial proceeding in cases where the value of the property seized is small.”

(People v. Angeloni (1995) 40 Cal.App.4th 1267, 1271, citing Nasir, supra, 11 

Cal.App.4th at pp. 983-984.) 

Subdivision (c) of section 11488.4 states:

“The Attorney General or district attorney shall make service of process 

regarding this petition upon every individual designated in a receipt issued 

for the property seized. In addition, the Attorney General or district 

attorney shall cause a notice of the seizure, if any, and of the intended 

forfeiture proceeding, as well as a notice stating that any interested party 

may file a verified claim with the superior court of the county in which the 

property was seized ... to be served by personal delivery ... upon any 

person who has an interest in the seized property ....”

It is well settled that statutes imposing forfeitures are disfavored and, thus, those 

statutes are to be strictly construed in favor of the persons against whom they are sought 

to be imposed. (People v. $10,153.38 in United States Currency (2009) 179 Cal.App.4th 

1520, 1525-1526; People v. $28,500 United States Currency (1996) 51 Cal.App.4th 447, 

463.) “This disfavor applies ‘notwithstanding the strong governmental interest in 

stemming illegal drug transactions.’” (People v. $10,153.38 in United States Currency, 

supra, at p. 1526, quoting People v. Ten $500 etc. Traveler’s Checks (1993) 16 

Cal.App.4th 475, 479.)

II. The Notice of Nonjudicial Forfeiture

Following his arrest in February 2011, petitioner was provided, among other 

things, with a document entitled Notice of Nonjudicial Forfeiture Proceedings. The 

document provided that on “2/10/11, at 260 S. M St, California,” the sum of 

“$16,871.99” was seized by the Tulare police department in accordance with a violation 

of “Health and Safety Code Section(s) 11379....” The document advised that, pursuant 
10.

to section “11488.4, proceedings to forfeit this property administratively are underway.” 

Information regarding making a claim was provided, and the document referenced an 

attached claim form. The proof of service portion at the bottom of the document 

indicated that petitioner was personally served with the document by “R. Moreno #34.” 

Petitioner’s signature also appears at the bottom of the document, acknowledging its 

receipt. Lastly, a note concerning the document’s distribution indicates the original of 

the document was to be forwarded to the “District Attorney’s Office” and a copy was to 

be maintained by the police department; a copy was also to be provided to the “Interested 

Party.”

A. Initiation of Forfeiture Proceedings by a Peace Officer

Petitioner contends his property must be returned because the seizing agency and 

the prosecuting agency failed to comply with the forfeiture statutes. Specifically, he 

points out that only the Attorney General or the district attorney of the jurisdiction may 

initiate the forfeiture proceedings, whether the proceedings are judicial or nonjudicial. 

(People v. $400 (1993) 17 Cal.App.4th 1615, 1620.) We agree with this contention.

Here, based on the purported notice provided to petitioner by the Tulare police 

department, he was told that pursuant to section “11488.4, proceedings to forfeit this 

property administratively are underway” and advising him he “must, within 30 days of ... 

actual receipt of this notice, file a verified claim ....” Clearly this matter was not referred 

to the prosecuting agency for the initiation of forfeiture proceedings as required by

sections 11488.1 and 11488.2. Further, the purported forfeiture proceedings were not 

initiated by the Attorney General or the district attorney. We see this as fatal to the 

validity of the forfeiture process undertaken in this case. For example, in People v. 

Superior Court (Plascencia), supra, 103 Cal.App.4th at page 419, the court held that 

under the judicial forfeiture requirements, “the Attorney General or district attorney ... 

must file a petition of forfeiture in the superior court, within specified time limits, and 

must comply with various service and notice requirements.”
11.

The People do not contend the Attorney General or the District Attorney of Tulare 

County initiated the forfeiture proceedings. Instead, the People attempt to place the 

burden on petitioner on the basis that his claim to his property was untimely and 

procedurally defective. We reject this contention as unsustainable.

A similar contention was made and rejected in Nasir, supra, 11 Cal.App.4th at 

pages 985-987. The court first noted the important constitutional and legal policies that 

come into play in forfeiture proceedings. It then held the law must be strictly construed 

in favor of the property owner and we “must require the district attorney to adhere rigidly 

to the procedural requisites for effecting an administrative forfeiture.” (Id. at p. 986.) 

“Stated another way, we must reject the [People’s] anomalous position that a claimant 

must rigidly comply with the statutory procedures but close is good enough for 

government work.” (Id. at p. 987.)

The People acknowledge our statement in People v. $400, supra, 17 Cal.App.4th 

1615 that “The Attorney General or the district attorney in a county are the only two 

individuals granted authority to initiate forfeiture proceedings.” (Id. at p. 1620.) The 

People nonetheless argue “that the district attorney properly followed forfeiture 

procedures, in that nothing in the statutes specifically forbade a peace officer from giving 

notice of the proceedings ....” The People also note this court's statement was made “in 

the context of determining whether an answer to a forfeiture complaint must be verified 

and not in the context of determining whether a police officer could properly give the 

initial notice of forfeiture.” The People continue:

“In People v. One [1986] Toyota Pickup (1995) 31 Cal.App.4th 254, 257, a 

law enforcement task force gave notice to the arrestees of seizure and of 

nonjudicial forfeiture proceedings. Nevertheless, neither the parties nor the 

Court raised this as an issue possibly barring forfeiture. Similarly, in Baca 

v. Minier (1991) 229 Cal.App.3d 1253, 1255, the claimant and his wife 

were personally served with notice of forfeiture the same day that the 

property in question was seized, raising at least an inference that the same 

law enforcement officers who seized the property also gave notice of the 

forfeiture. Again, this was not raised as an issue before this Court.”
12.

First, in Baca v. Minier, supra, 229 Cal.App.3d 1253, the claimant and his wife 

were personally served with a notice of seizure, not a notice of forfeiture as contended by 

the People. (Id. at pp. 1255, 1265.) Second, simply because the issue was not raised in 

the cases cited does not mean the court has sanctioned a procedure that does not comply 

with the clearly stated statutory requirements. We address the People’s arguments further 

under the discussion on service of the notice below.

B. Service by a Peace Officer

Petitioner asserts that because Officer Moreno with the Tulare police department 

served the notice of nonjudicial forfeiture proceedings, as opposed to the Attorney 

General or district attorney, the notice was insufficient and invalid in the first instance. 

He contends the statute is not ambiguous and thus requires service by either the Attorney 

General or the district attorney. And because the forfeiture statutes are to be strictly 

construed, Officer Moreno could not properly serve the notice. The People assert 

petitioner had actual notice of the nonjudicial proceeding and because he failed to file a 

claim, he cannot properly challenge the forfeiture. They further contend that because the 

original notice was directed to the Tulare County District Attorney’s Office, and the 

notice was then filed, its imprimatur is sufficient for purposes of service. The People also 

contend that nothing in the statute forbids a peace officer from giving the required notice.

We hold that, because forfeiture is disfavored and the relevant statutes are to be 

strictly construed in favor of the person against whom forfeiture is sought, notice must be 

provided by the Attorney General or the district attorney as expressly provided for in 

section 11488.4, subdivisions (c) and (j).

A police department, sheriff’s office, or similar agency is a law enforcement 

agency. It does not prosecute crimes. On the other hand, the Attorney General and the 

various county district attorneys are tasked with prosecuting crimes. They are 

prosecuting agencies, and the relevant forfeiture statutes make this distinction. For 

example, in section 11469, the “seizing agencies” referenced throughout that statute are 

unambiguous references to law enforcement agencies. That language is distinguished 
13.

from the unambiguous references to a “prosecuting agency” or “prosecutorial agency” as 

used in sections 11488.4 and 11488.5. Simply stated, a law enforcement agency is not a 

prosecuting agency.

The People generally contend the district attorney may delegate its duty of notice 

to the Tulare police department. Further, they assert that nothing in the statute forbids a 

peace officer from providing notice of nonjudicial forfeiture. As to the district attorney’s 

authority to delegate duties in the forfeiture context, the People have provided no 

authority for this proposition. We note, however, that section 7 provides that 

“[w]henever a power is granted to, or a duty is imposed upon, a public officer, the power 

may be exercised or the duty may be performed by a deputy of the officer or by a person 

authorized, pursuant to law, by the officer, unless this code expressly provides 

otherwise.” (See also Gov. Code, § 7 [same].) Therefore, the delegation of powers is 

appropriate within the same agency. However, because section 11488.4 expressly 

provides for service by the Attorney General or district attorney, those duties cannot be 

delegated. If the Legislature intended for the Attorney General or district attorney to 

delegate its duty to prosecute—even if only in the form of providing notice of initiation 

of nonjudicial or administrative forfeiture proceedings—it would have expressly 

provided for such a delegation. It did not do so. The People’s contention that the statute 

does not forbid service by a peace officer ignores the well-settled principle that forfeiture 

statutes are to be strictly construed in favor of the persons against whom they are sought 

to be imposed. (People v. $10,153.38 in United States Currency, supra, 179 Cal.App.4th 

at pp. 1525-1526.) It is true the statute does not forbid service by a law enforcement 

agency. Yet, the relevant statutes expressly and unambiguously call for prosecuting 

agencies to perform these duties.

The People also contend the relevant policy considerations would not be offended 

by the delegation of duties it has suggested, nor would petitioner be prejudiced thereby. 

As noted by the court in Nasir, supra, 11 Cal.App.4th 976, “administrative forfeiture 

procedures serve important public interests” such as the conservation of judicial 
14.

resources and reduction in court congestion, conservation of prosecutorial agency 

resources, reduction in the burden associated with storage and preservation of the 

property, and the avoidance of deterioration and depreciation of some types of property. 

(Id. at p. 985.) While we agree the policy considerations or public interest may not be 

offended by the district attorney’s delegation of service or notice duties to a peace officer 

in the abstract, we find those considerations do not override the well-settled principle that 

forfeiture statutes are to be interpreted in favor of the party against whom the seizure is 

sought. (People v. $10,153.38 in United States Currency, supra, 179 Cal.App.4th at pp. 

1525-1526.) With regard to the People’s citation to Code of Civil Procedure section 

475,6 we find it inapplicable in this circumstance because forfeiture proceedings do affect 

the substantial rights of the person against whom forfeiture is sought. (Nasir, supra, at p. 

991.)

We are mindful of the fact we have previously decided forfeiture cases wherein 

the notice of initiation of forfeiture proceedings was apparently served by a member of 

the involved law enforcement agency. (People v. One 1986 Toyota Pickup, supra, 31 

Cal.App.4th at p. 257 [narcotics task force associated with Bakersfield police department 

“issued both claimant’s cousin and the cousin’s passenger receipts for seizure/personal 

notices of nonjudicial forfeiture proceedings”]; Baca v. Minier, supra, 229 Cal.App.3d at

p. 1255 [appears that Madera County Sheriff’s Department personally served notice of 

seizure]; but see People v. Angeloni, supra, 40 Cal.App.4th at p. 1270 [Kern County 

District Attorney initiated nonjudicial forfeiture proceedings]; People v. Property Listed 

 

6That section provides as follows: “The court must, in every stage of an action, disregard 

any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the 

opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, 

or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless 

it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and 

also that by reason of such error, ruling, instruction, or defect, the said party complaining or 

appealing sustained and suffered substantial injury, and that a different result would have been 

probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be 

no presumption that error is prejudicial, or that injury was done if error is shown.” (Code Civ. 

Proc., § 475.)
15.

in Exhibit One (1991) 227 Cal.App.3d 1, 6 [“district attorney provides the requisite 

notice”].) Nevertheless, and significantly so, the issue of the propriety of notice has 

never been before us.7

Notably, however, in People v. $400, supra, 17 Cal.App.4th 1615, we considered 

whether a trial court abused its discretion by granting a motion to strike an answer to a 

forfeiture complaint where the forfeiture statutes require only a verified claim. (Id. at pp. 

1617-1618.) In deciding that section 446 of the Code of Civil Procedure is applicable to 

forfeiture proceedings because it is not otherwise inconsistent with the forfeiture statutes, 

we stated the following: “The Attorney General or the district attorney in a county are 

the only two individuals granted authority to initiate forfeiture proceedings.” (People v. 

$400, supra, at p. 1620.) We agree with our court’s prior statement in this regard.

The People contend petitioner had actual notice of the nonjudicial forfeiture 

proceedings and, thus, the fact he failed to file a claim precludes relief. It does appear 

petitioner received actual notice of the nonjudicial forfeiture proceedings as his signature 

appears on that document acknowledging receipt of the notice and a copy of a claim 

form. Nonetheless, the defects in the notice and the procedure employed to give notice 

make this forfeiture proceeding invalid in the first instance. Thus, whether petitioner 

 

7Neither does it appear this issue has been considered by another appellate court. A 

sampling of cases from other districts likewise indicates that, while the issue was not before 

those courts, the agencies giving notice of forfeiture proceedings varies as between a law 

enforcement agency or a prosecuting agency. (People v. $25,000 United States Currency (2005) 

131 Cal.App.4th 127, 130 [district attorney’s office issued receipt for seized currency “with 

notification that ‘procedures to forfeit this property are underway’” (Ct. App., First Dist.)]; 

People v. $10,153.38 in United States Currency, supra, 179 Cal.App.4th at p. 1523 [following 

seizure of cocaine base, marijuana and currency, “the People served notice of the right to oppose 

forfeiture of the funds” (Ct. App., Second Dist.)]; People v. $241,600 United States Currency

(1998) 67 Cal.App.4th 1100, 1107 [appears claimant may have been served with notice at time 

of his arrest by Blythe police officer (Ct. App., Fourth Dist.)].) The varying methods among the 

counties for giving notice of administrative forfeiture proceedings is also noted in Levenson, 

California Criminal Procedure (The Rutter Group 2012-2013) Postconviction Disabilities, 

section 32:27, pages 32-37 to 32-38.
16.

filed a claim is not relevant to our determination here for there was no proper or valid 

forfeiture proceeding to which he could make a claim.

We agree with the Nasir court that “‘the burden on the government to adhere to 

the procedural rules should be heavier than on claimants. Forfeitures are not favored in 

the law; strict compliance with the letter of the law by those seeking forfeiture must be 

required.’ (U.S. v. $38,000.00 in U.S. Currency [(11th Cir. 1987)] 816 F.2d [1538,] 

1547, and cases cited there.)” (Nasir, supra, 11 Cal.App.4th at p. 986.)

In sum, because the forfeiture statutes must be strictly construed in favor of 

petitioner here, we hold the notice of nonjudicial forfeiture proceedings initiated by 

Officer Moreno of the Tulare police department was invalid. The statute unambiguously 

requires service and notice by the Tulare County District Attorney or his deputies, or the 

Attorney General. But even if we were to overlook this requirement, as urged by the 

People, the notice contained other fatal flaws.

C. The Notice’s Facial Deficiencies

Petitioner additionally contends the notice of nonjudicial forfeiture proceedings is 

facially deficient because it fails to identify the property seized from and belonging to 

him; namely, the sum of $7,014.37. Next, he maintains the location or place of seizure is 

incorrect. Last, petitioner asserts that because the publication contained those same 

defects, and did not reference the same violation of law he was alleged to have committed 

in the related criminal complaint, the notice is defective.

1. Identity of the property seized

Subdivision (j)(2) of section 11488.4 requires the Attorney General or district 

attorney to include the “appraised value of the property” in its notice of proceedings. 

Here, the notice reflects the “total approximate value of the property is $16,871.99.” 

However, on the same date the notice was prepared by Officer Moreno, a disclaimer of 

ownership document was also completed by petitioner. That document provides that 

Aguirre owns the other property seized on February 10, 2011, to wit: $3,990 in United 

States currency and $5,862.63 in United States currency. The disclaimer form expressly 
17.

provides petitioner is “not the owner” of the property and he has “no interest” and “no 

claim” in it. Petitioner acknowledged he was waiving his right to notice of seizure as to 

that property and thus he had no right to “file a petition or claim for return of the 

property.”

Because petitioner disclaimed ownership of the other currency seized on 

February 10, 2011 ($9,852.62), we find the notice and its reference to a total sum of 

$16,871.99 is defective. In Nasir, supra, 11 Cal.App.4th 976, the court determined that a 

notice lacking any reference to the value of the property was defective. It noted the 

requirement regarding appraised value served to establish the property fell within the 

jurisdictional limits of administrative forfeiture and served to “aid the potential claimant 

in determining whether it is worthwhile to pursue a claim or to hire counsel to make a 

claim.” (Id. at p. 987.) While the instant notice is not utterly lacking in value as was the 

case in Nasir, it is inaccurate and misleading. The receipt provided by the Tulare police 

department plainly identified the sum seized from petitioner to be $7,014.37. Notably, 

too, the language of the notice of nonjudicial forfeiture is singular in its reference to any 

party making a claim. As a result, where petitioner expressly disclaimed ownership of 

the other currency at the same time, the notice’s reference to the sum of $16,871.99 is a 

defect. And technical defects are to be construed in a claimant’s favor. (Nasir, supra, 11 

Cal.App.4th at p. 988.)

The People’s arguments to the contrary are not persuasive. Providing only the 

entire amount seized is an ambiguity that can impede a potential claimant, particularly if 

he be among more than one, from identifying the proceeding in which he might claim an 

interest. This is even more true where a claimant has expressly disclaimed ownership to 

a portion of the monies seized and has waived any right to notice and the right to claim

ownership of that property.
18.

2. Location of the seizure

Petitioner next contends the notice of nonjudicial forfeiture incorrectly identifies 

the place of seizure. He notes the seizure occurred at the Tulare Outlet Center when he 

was originally contacted by members of the Tulare police department.

Subdivision (j)(3) of section 11488.4 requires the “place of seizure” must appear 

on the notice of proceedings. Here, the notice provides that the property was seized at 

“260 S. M St, California.” That address is associated with the police department. Yet, 

the various police reports appended to the People’s written return reveal the money was 

in fact seized at 1511 Retherford Street, or in front of the PacSun retail store at the 

Preferred Outlets in Tulare. It is clear the seizure of petitioner’s property occurred prior 

to his arrival at the police department, therefore, the place of seizure could not have been 

260 South M Street in Tulare, California. Thus, the notice is defective in this regard and 

should be construed in petitioner’s favor. (Nasir, supra, 11 Cal.App.4th at p. 988.)

We are not moved by the People’s argument that “the notice was specific enough.” 

Like the Nasir court, “we are neither inclined nor permitted to accord the administrative 

forfeiture statute what Justice Holmes, in a different context, called ‘a little play in its 

joints.’ [Citation.]” (Nasir, supra, 11 Cal.App.4th at p. 987.)

3. Notice by publication

Petitioner also alleges that because the value of the property and the location of the 

seizure are incorrect, the publication including this same information is defective.

Subdivision (e) of section 11488.4 provides that when “a forfeiture action is filed, 

the notices shall be published once a week for three successive weeks in a newspaper of 

general circulation in the county where the seizure was made or where the property 

subject to forfeiture is located.”

Here, the publication notice read as follows:

“Case No. TG11-1144. On February 10, 2011, in the City of Tulare, 

California, at 260 S. M St., officers of the Tulare Police Department seized 

the following property for forfeiture due to the violation of ... section 
19.

11379. The total value of the property is $16,871.99. The seized property 

is described as $16,871.99 in U.S. currency.”

Because we have already determined the notice of nonjudicial forfeiture proceeding was 

defective as to the identity of the property seized and the location of the seizure, the 

publication that includes the same information is likewise defective.

4. Offense alleged

Subdivision (j)(4) of section 11488.4 requires the notice of nonjudicial forfeiture 

proceedings include “[t]he violation of law alleged with respect to forfeiture of the 

property.”

Here, the notice was completed by a peace officer rather than a prosecutor. 

Hence, the notice only references the violation of the law that permitted seizure by the 

law enforcement officer, section 11379. The notice did not allege a violation with respect 

to forfeiture. Because a law enforcement agency is not a prosecuting agency, it does not 

“allege” violations of law in the context intended by the statute.

Moreover, when the complaint of the Tulare County District Attorney was filed on 

May 2, 2011, it alleged petitioner had committed a violation of section 11377, 

subdivision (a), or possession of methamphetamine. However, possession of a controlled 

substance under section 11377 is not an offense listed in the forfeiture statutes. (§ 11470, 

subd. (f) [identifying offenses permitting forfeiture].)

Because the notice of nonjudicial forfeiture proceedings references a violation of 

the Health and Safety Code that permitted seizure by a law enforcement agency, rather 

than a criminal allegation that permitted forfeiture by a prosecuting agency, the notice 

and publication were defective in this regard as well.

III. Our Conclusion

We hold the forfeiture statutes require the initiation of forfeiture proceedings, and 

particularly notice and service of the notice, by a prosecuting agency—namely, the 

Attorney General or the district attorney—versus a law enforcement agency. Here then, 
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because the notice of nonjudicial forfeiture proceedings was initiated by a member of the 

Tulare police department, the forfeiture proceeding was invalid in the first instance.

Moreover, the notice of nonjudicial forfeiture proceedings contained defects in the 

form of the identity of the property seized and the location of seizure. The property was 

not properly identified as $7,014.37 in United States currency and the location of the 

seizure occurred where petitioner first encountered members of the Tulare police 

department rather than at its administrative offices.

The facial defects above also appeared in the notice of publication, as did another 

defect: Instead of alleging a violation with respect to forfeiture, the publication 

referenced a violation of law that permitted seizure. The Tulare police department seized 

the currency pursuant to section 11379, but petitioner was alleged to have violated 

section 11377, an offense for which the forfeiture of property is unavailable.

Therefore, for the reasons explained above, we will grant the petition for writ of 

mandate.

IV. The Remedy

Having concluded the administrative forfeiture proceeding was invalid in the first 

instance, we turn to the appropriate remedy available to petitioner.

Petitioner asks this court to direct the lower court to vacate its order of April 6, 

2012, denying his motion to compel the return of his property, and to “make a new and 

different order granting said motion.”

Subdivision (g) of section 11488.4 provides the following:

“Nothing contained in this chapter shall preclude a person, other than a 

defendant, claiming an interest in property actually seized from moving for 

a return of property if that person can show standing by proving an interest 

in the property not assigned subsequent to the seizure or filing of the 

forfeiture petition.”

Here, petitioner is not a defendant in a criminal proceeding. The criminal complaint was 

dismissed on the People’s motion in December 2011 prior to petitioner’s motion being 

filed in March 2012. Thus, petitioner is a person claiming an interest in property actually 
21.

seized. There is no question as to petitioner’s standing and his motion should have been 

considered in its totality. In other words, the trial court should have considered whether 

to return to petitioner the $7,014.37 in currency. Moreover, there had been no prior 

judicial proceeding regarding the money seized.

In Baca v. Minier, supra, 229 Cal.App.3d 1253, this court considered whether the 

superior court had in rem jurisdiction of Baca’s property. Baca’s property was seized on 

two different dates. He filed claims to the property, as well as a motion to return the 

property. There was a question with regard to the timeliness of his claims. Thereafter, 

the district attorney filed a petition for forfeiture in the superior court and simultaneously 

sought to continue the forfeiture hearing pending the outcome of the criminal case against 

Baca. The request was granted. Later, however, the district attorney filed declarations of 

forfeiture pursuant to the administrative or nonjudicial forfeiture statute. Baca’s 

subsequent petition for writ of mandate seeking to quash the district attorney’s 

nonjudicial forfeiture was denied, and he appealed. (Id. at pp. 1255-1256.) In denying 

the petition for writ of mandate, the superior court concluded it lacked in rem jurisdiction 

because the property had been administratively forfeited. (Id. at p. 1257.) We 

determined in Baca that the superior court did have jurisdiction over the property or res 

because it had been released improperly. (Id. at pp. 1262-1266.)

Although not procedurally on all fours with Baca, a similar finding regarding the 

superior court’s jurisdiction is just and proper here. The superior court has jurisdiction to 

consider petitioner’s motion for the return of the currency. As we noted in Baca, “[a] 

contrary result would permit the district attorney to file a [declaration] of forfeiture—

claiming the notice requirements have been met without actually adhering to them (as is 

the case here)—and the defendant would be without recourse in the superior court” to 

recover the seized property. (Baca v. Minier, supra, 229 Cal.App.3d at p. 1266.) When 

property is administratively forfeited, title transfers from the owner of the property to the 

state. And in Baca we held that “[t]ransfer of title would thus insulate the district 

attorney and deny a defendant due process of law.” (Ibid.) Such is the case here. The 
22.

district attorney’s office should not be insulated from its series of errors, and as a result of 

those errors, the property at issue has been effectively removed from the court’s control. 

Because the res was released improperly, the superior court has jurisdiction to consider 

petitioner’s claim to the currency. Any other outcome would leave a claimant without 

recourse and would serve to deny the claimant due process of law.

DISPOSITION

The petition for writ of mandate is granted. Let a writ of mandate issue directing 

the trial court to vacate its order denying petitioner’s motion to compel return of his 

currency and set the matter for a new hearing on petitioner’s motion to compel return of 

his personal property.

___________________________

PEÑA, J.

WE CONCUR:

________________________________

LEVY, Acting P.J.

________________________________

CORNELL, J.