______________________________________ 

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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 State of California
 

DANIEL E. LUNGREN
 Attorney General
 

OPINION :
 

: No. 94-406
 of :
 

: May 8, 1995

DANIEL E. LUNGREN :
 Attorney General :
 

:
 ANTHONY S. Da VIGO :
 Deputy Attorney General :
 

: 

THE HONORABLE JOHN F. HAHN, COUNTY COUNSEL, COUNTY OF 

AMADOR, has requested an opinion on the following questions: 

1. How are the proceeds from the sale by a county of assets forfeited under the

California Control of Profits of Organized Crime Act to be distributed? 

2. How are the proceeds from the sale by a county of assets forfeited under the

California Uniform Controlled Substances Act to be distributed? 

3. Are the proceeds distributed to the sheriff from the sale by a county of assets

forfeited under the California Uniform Controlled Substances Act to be tendered outside the normal 

budgetary process undertaken by the board of supervisors? 

CONCLUSIONS 

1. Except as the court declaring the forfeiture orders a distribution to a bona fide or

innocent purchaser, conditional sales vendor, or holder of a valid lien, mortgage or security interest,

and except as otherwise provided in connection with violations of statutes pertaining to child

pornography, the proceeds from the sale by a county of assets forfeited under the California Control

of Profits of Organized Crime Act are to be distributed to the county for its expenditures made or

incurred in connection with the repair, storage, transportation, and sale of the property, and the

remainder to the general fund of the county. 

2. Except as the court declaring the forfeiture orders a distribution to a bona fide or

innocent purchaser, conditional sales vendor, or mortgagee of the property, the proceeds from the

sale by a county of assets forfeited under the California Uniform Controlled Substances Act are to

be distributed to the county for its expenditures made or incurred in connection with the repair,

storage, transportation, and sale of the property, and the remainder as follows: 65 percent to the

sheriff's office and other participating law enforcement agencies according to the proportionate 

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contribution of each, 10 percent to the district attorney's office, 24 percent to the general fund in the

State Treasury, and 1 percent to eligible nonprofit organizations. 

3. The proceeds distributed to the sheriff from the sale by a county of assets forfeited

under the California Uniform Controlled Substances Act are not to be tendered outside the normal 

budgetary process undertaken by the board of supervisors. However, the distribution of the proceeds

by the board of supervisors shall not supplant any state or local funds that would otherwise be made

available to support the law enforcement efforts of the sheriff. 

ANALYSIS 

1. CRIMINAL PROFITEERING ASSET FORFEITURES 

The California Control of Profits of Organized Crime Act (Pen. Code, §§ 186-186.8)1 

provides for the forfeiture of property acquired during the course of engagement in a "pattern of

criminal profiteering activity." (§ 186.4.) The first inquiry concerns the proper distribution of the

proceeds from the sale by a county of assets forfeited for criminal profiteering. Section 186.8 sets 

forth the distribution of the proceeds from a forfeiture sale as follows: 

"Notwithstanding that no response or claim has been filed pursuant to Section

186.5, in all cases where property is forfeited pursuant to this chapter and, where

necessary, sold by the Department of General Services or local governmental entity,

the money forfeited or the proceeds of sale shall be distributed by the local

governmental entity as follows: 

"(a) To the bona fide or innocent purchaser, conditional sales vendor, or

holder of a valid lien, mortgage or security interest, if any, up to the amount of his

or her interest in the property or proceeds, when the court declaring the forfeiture

orders a distribution to that person. The court shall endeavor to discover all such 

lienholders and protect their interests and may, at is discretion, order the proceeds

placed in escrow for up to an additional 60 days to ensure that all valid claims are

received and processed. 

"(b) To the Department of General Services or local governmental entity for

all expenditures made or incurred by it in connection with the sale of property,

including expenditures for any necessary repairs, storage, or transportation of any

property seized under this chapter. 

"(c) To the general fund of the state or local governmental entity, whichever 

prosecutes. 

"(d) In any case involving a violation of subdivision (b) Section 311.2, or

Section 311.3 or 311.4, in lieu of the distribution of the proceeds provided for by

subdivisions (b) and (c), the proceeds shall be deposited in the county children's trust

fund, established pursuant to Section 18966 of the Welfare and Institutions Code, of

the county which filed the petition of forfeiture. If the county does not have a 

1

All references to the Penal Code prior to footnote 3 are by section number only. 

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children's trust fund, the funds shall be deposited in the State Children's Trust Fund,

established pursuant to Section 18969 of the Welfare and Institutions Code."2 

Section 186.8 provides that in a local prosecution, the proceeds of the sale shall be distributed by

the "local governmental entity" in the following order: (1) to a bona fide purchaser, conditional

sales vendor, or holder of a valid lien, mortgage or security interest when so ordered by a court, (2)

to the "local governmental entity" for its expenditures made or incurred in connection with the

repair, storage, transportation, and sale of the property, and (3) to the general fund of the "local

governmental entity." In cases involving a violation of laws pertaining to child pornography, the

distribution is to a children's trust fund rather than to the general fund or to cover expenses. 

While the phrase "local governmental entity" is not defined in the statute, there can

be little doubt that it refers, for purposes of the present inquiry, to the county as distinguished from

a particular agency of the county, and that the "general fund of the . . . local governmental entity"

refers to the county's general fund. In another statutory scheme, discussed below, pertaining to the

distribution of proceeds from the sale of property forfeited in connection with controlled substance

violations, the phrase "local governmental entity" is expressly defined as "any city, county, or city

and county in this state." (Health & Saf. Code, § 11489, subd. (d).) 

Here, the interpretive maxim applies that "[s]tatutes in pari materia should be

construed together." (Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736,

744; 74 Ops.Cal.Atty.Gen. 37, 40 (1991).) Further, other statutes that might bear upon the meaning 

of the statute at issue may be considered. (White v. County of Sacramento (1982) 31 Cal.3d 676,

682; 62 Ops.Cal.Atty.Gen. 70, 73 (1979).) More specifically, similar phrases in statutes on like 

subjects will be similarly construed. (Hunstock v. Estate Dev. Corp. (1943) 22 Cal.2d 205, 210-211;

Estate of Hoertkorn (1979) 88 Cal.App.3d 461, 465-466.) 

The application of these precepts is particularly compelling in interpreting section

186.8 inasmuch as it was originally enacted as part of the Statutes of 1982, chapter 1281, approved

by the Governor on September 21, 1982, and filed with the Secretary of State on September 22,

1982. The similar forfeiture statute defining the phrase "local governmental entity" (then Health &

Saf. Code, § 11488.7), was introduced by the same author, enacted as part of the Statutes of 1982,

chapter 1289, and approved by the Governor and filed with the Secretary of State on the same

respective dates. 

It is concluded that except as the court declaring the forfeiture orders a distribution

to a bona fide or innocent purchaser, conditional sales vendor, or holder of a valid lien, mortgage

or security interest, and except as otherwise provided in connection with violations of statutes

pertaining to child pornography, the proceeds from the sale by a county of assets forfeited under the

California Control of Profits of Organized Crime Act are to be distributed to the county for its 

2

Under section 186.5 subdivision (a), "[a]ny person claiming an interest in the property or

proceeds may . . . file . . . a verified claim stating his or her interest in the property or proceeds."

A response may also be filed by the defendant denying that the property is subject to forfeiture. (§

186.5, subd. (b).) At the forfeiture hearing, the prosecuting agency has the burden of establishing

beyond a reasonable doubt that the defendant was engaged in the criminal activity in question and

that the property is subject to forfeiture. (§ 186.5, subd. (d).) 

Violations of sections 311.2, 311.3, and 311.4 involve child pornography. The children's 

trust funds at the state and county levels support child abuse and neglect prevention and intervention 

programs. 

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expenditures made or incurred in connection with the repair, storage, transportation, and sale of the

property, and the remainder to the general fund of the county. 

2. CONTROLLED SUBSTANCES ASSET FORFEITURES 

The California Uniform Controlled Substances Act (Health & Saf. Code, §§ 11000- 11651)3

 provides for the forfeiture of property seized in connection with controlled substance

violations (cf. §§ 11350-11392). The second inquiry concerns the proper distribution of the

proceeds from the sale by a county of assets forfeited for such violations. Section 11489 provides

for the distribution as follows: 

"Notwithstanding Section 11502 and except as otherwise provided in Section

11473, in all cases where the property is seized pursuant to this chapter and forfeited

to the state or local governmental entity and, where necessary, sold by the

Department of General Services or local governmental entity, the money forfeited

or the proceeds of sale shall be distributed by the state or local governmental entity

as follows: 

"(a) To the bona fide or innocent purchaser, conditional sales vendor, or

mortgagee of the property, if any, up to the amount of his or her interest in the

property, when the court declaring the forfeiture orders a distribution to that person. 

"(b) The balance, if any, to accumulate, and to be distributed and transferred

quarterly in the following manner: 

"(1) To the state agency or local governmental entity for all expenditures

made or incurred by it in connection with the sale of the property, including

expenditures for any necessary repairs, storage, or transportation of any property

seized under this chapter. 

"(2) The remaining funds shall be distributed as follows: 

"(A) Sixty-five percent to the state, local, or state and local law enforcement

entities that participated in the seizure distributed so as to reflect the proportionate

contribution of each agency. 

"(i) Fifteen percent of the funds distributed pursuant to this subparagraph

shall be deposited in a special fund maintained by the county, city, or city and county

of any agency making the seizure or seeking an order for forfeiture. This fund shall 

be used for the sole purpose of funding programs designed to combat drug abuse and

divert gang activity, and shall wherever possible involve educators, parents,

community-based organizations and local businesses, and uniformed law

enforcement officers. Those programs that have been evaluated as successful shall 

be given priority. These funds shall not be used to supplant any state or local funds

that would, in the absence of this clause, otherwise be made available to the 

programs. 

"It is the intent of the Legislature to cause the development and continuation

of positive intervention programs for high-risk elementary and secondary schoolage 

3

All references hereafter to the Health and Safety Code are by section number only. 

4. 94-406
 
 

students. Local law enforcement should work in partnership with state and local

agencies and the private sector in administering these programs. 

"(ii) The actual distribution of funds set aside pursuant to clause (i) is to be

determined by a panel consisting of the sheriff of the county, a police chief selected

by the other chiefs in the county, and the district attorney and the chief probation

officer of the county. 

"(B) Ten percent to the prosecutorial agency which processes the forfeiture 

action. 

"(C) Twenty-four percent to the General Fund. Notwithstanding Section

13340 of the Government Code, the moneys are hereby continuously appropriated

to the General Fund. . . . 

"(D) One percent to a private nonprofit organization composed of local

prosecutors which shall use these funds for the exclusive purpose of providing a

statewide program of education and training for prosecutors and law enforcement

officers in ethics and the proper use of laws permitting the seizure and forfeiture of

assets under this chapter. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"(d) All the funds distributed to the state or local governmental entity

pursuant to subparagraphs (A) and (B) of paragraph (2) of subdivision (b) shall not

supplant any state or local funds that would, in the absence of this subdivision, be

made available to support the law enforcement and prosecutorial efforts of these

agencies. 

"The court shall order the forfeiture proceeds distributed to the state, local,

or state and local governmental entities as provided in this section. 

"For the purposes of this section, `local governmental entity' means any city,

county or city and county in this state. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."4 

Section 11489 generally provides that in a local prosecution, the proceeds of the sale shall be

distributed by the "local governmental entity" in the following order: (1) to a bona fide purchaser,

conditional sales vendor, or mortgagee when so ordered by a court, (2) to the "local governmental

entity" for its expenditures made or incurred in connection with the repair, storage, transportation,

and sale of the property, and (3) to the participating "local law enforcement entities," "prosecutorial

agency," "General Fund," and eligible nonprofit organizations. 

4

Section 11502 requires that any money, forfeited bail, or fine received by a court pursuant to

sections 11000-11651 is to be distributed as follows: 75 percent to the state and 25 percent to the

county or city depending upon where the offense occurred. Section 11473 provides for the

destruction of certain seized property upon conviction of the owner or defendant. Government Code 

section 13340 generally prohibits the encumbrance of any continuously appropriated state funds

except by provision in the Budget Act. 

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As previously noted, the phrase "local governmental entity" is expressly defined in

section 11489 to include counties. The phrase "local law enforcement entity," however, is not 

defined. Clearly, the term "governmental entity" is general, while a "law enforcement entity"

connotes a particular agency within the governmental entity. Further, as a matter of reasoned 

hypothesis, had the Legislature intended to refer to the county generally, it would have employed

the term expressly defined to include a county. 

The term "law enforcement" in common parlance pertains to the investigation,

detection, and punishment of crime. In the case of a county, these functions are the primary duty 

of the sheriff. (Gov. Code, §§ 12560, 12561, 26600-26605.) We do not accord significance to the

use of the term "entity" as distinguished from the term "agency" in connection with the phrase "law

enforcement." "Agency" and "entity" are often used synonymously in various contexts. For 

example, while Penal Code section 832.5 provides that "[e]ach department or agency in this state

which employs peace officers shall establish a procedure to investigate citizens' complaints against

the personnel of such departments or agencies," the court in Pena v. Municipal Court (1979) 96

Cal.App.3d 77, 83, stated with respect to this statutory terminology: "the Legislature did not intend

citizens' complaints to a law enforcement entity concerning the conduct of that entity or its officers

as envisioned under Penal Code section 832.5 to be within the definition of a police report. . . ."

Another example is found in the very provision of the statute under consideration: "Sixty-five

percent to the . . . local . . . law enforcement entities that participated in the seizure distributed so

as to reflect the proportionate contribution of each agency." (§ 11489, subd. (b)(2)(A).)

Accordingly, the phrase "law enforcement entity" refers, for purposes of this discourse, to the

sheriff's office. 

The term "prosecutorial agency" contained in section 11489 undoubtedly refers to

the office of the district attorney. (See, § 11488.4, subd. (j)(5) ["prosecuting agency" used

synonymously with Attorney General or district attorney]; Nasir v. Sacramento etc. District 

Attorney (1992) 11 Cal.App.4th 976, 984-985, 990 [office of the district attorney described as the

"prosecuting agency"].) 

Finally, the term "General Fund" as used in subdivision (b)(2)(C) of section 11489

refers to the general fund in the State Treasury. As previously indicated, Government Code section

13340 referenced in the subdivision is found among the provisions governing the executive

department of state government, and generally prohibits the encumbrance of moneys continuously

appropriated without regard to fiscal years by any statute other than the Budget Act. 

It is concluded, therefore, that the proceeds from the sale by a county of property

forfeited for controlled substance violations are to be distributed first to a bona fide purchaser,

conditional sales vendor, or mortgagee as may be ordered by the court, second to the county for its

designated expenditures, and the remainder as follows: 65 percent to the sheriff's office and to other

law enforcement agencies according to the contribution of each, 10 percent to the district attorney's

office, 24 percent to the general fund in the State Treasury, and 1 percent to eligible nonprofit

organizations. 

3. DISTRIBUTION TO LAW ENFORCEMENT ENTITIES 

The final inquiry concerns the disposition of the 65 percent of the remainder funds

referred to in subdivision (b)(2)(A) of section 11489 with regard to the sale of property seized in

connection with controlled substance violations. Specifically, is that portion to be tendered in the

case of a local prosecution directly to and for disposition by the sheriff without going through the

usual budgetary process of the board of supervisors? In our view, the funds should not be so 

tendered but rather allocated by the board of supervisors through the normal budgetary process. 

6. 94-406
 
Nothing in section 11489 suggests an intended departure from the ordinary

procedures for fiscal management by a county. In this regard, "A county may exercise its powers

only through the board of supervisors or through agents and officers acting under authority of the

board or authority conferred by law." (Gov. Code, § 23005.) Government Code section 25303 

provides in part: 

"The board of supervisors shall supervise the official conduct of all county

officers . . . and particularly insofar as the functions and duties of such county

officers . . . relate to the assessing, collecting, safekeeping, management, or

disbursement of public funds. . . . 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"Nothing contained herein shall be construed to limit the budgetary authority

of the board of supervisors over the district attorney or sheriff." 

The county board of supervisors exercises control over the county budget. (Gov. Code, §§ 29000- 29093.) Accordingly, county officers are generally limited in the incurring or paying of obligations

to the amounts of the appropriations allowed by the budget. (Gov. Code, § 29120; see Beck v. 

County of Santa Clara (1988) 204 Cal.App.3d 789, 800-801; County of Butte v. Superior Court 

(1985) 176 Cal.App.3d 693, 698-700.) 

In any event, section 11489 clearly indicates that the respective portions of the

proceeds designated for ultimate distribution to a sheriff and to a district attorney shall first be

distributed to the local governmental entity. Specifically, subdivision (d) begins with the words:

"All the funds distributed to the . . . local governmental entity pursuant to subparagraphs (A) and

(B) of paragraph (2) of subdivision (b) shall not supplant any state or local funds . . . ." While 

subparagraphs (A) and (B) provide that portions are to be allocated to the sheriff and district attorney

respectively, initial distribution is to the "local governmental entity." As previously discussed, the

latter term by statutory definition refers to a county as distinguished from a particular agency within 

a county. Hence, the statute contemplates that "[a]ll the funds" be distributed initially to the county

for allocation by the board of supervisors. 

Further, the second sentence of subdivision (d) of section 11489 provides: "The court 

shall order the forfeiture proceeds distributed to the . . . local governmental entities as provided in

this section." Of particular interest here is the fact that in the version of the same statute which was

operative until January 1, 1994, the words "local agencies" appeared in lieu of the words "local

governmental entities" in the quoted sentence. In the version which became operative on January

1, 1994, the words "local governmental entities" were substituted in conjunction with the addition

of a specific definition of those words, i.e., ". . . any city, county, or city and county in this state." 

Moreover, the first paragraph of section 11489 provides that ". . . the proceeds of sale

shall be distributed by the . . . local governmental entity" in the manner prescribed by the statute.

Of course, the county may not distribute the proceeds as prescribed in the statute unless it first

receives them. 

It is concluded, therefore, that the proceeds from the sale by a county of assets

forfeited under the California Uniform Controlled Substances Act designated for use by the sheriff

are to be distributed to the sheriff by the county acting through its board of supervisors in the

exercise of its budgetary authority. It is expressly recognized that the distribution of the proceeds

by the board of supervisors shall not supplant any state or local funds that would otherwise be made

available to support the law enforcement efforts of the sheriff. (§ 11489, subd. (d).) 

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