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<ns0:ActionText>INTRODUCED</ns0:ActionText>
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<ns0:AuthorText authorType="LEAD_AUTHOR">Introduced by Senator Jones</ns0:AuthorText>
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<ns0:Legislator>
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<ns0:Name>Jones</ns0:Name>
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<ns0:Title> An act to amend Section 115 of the Penal Code, relating to forgery. </ns0:Title>
<ns0:RelatingClause>forgery</ns0:RelatingClause>
<ns0:GeneralSubject>
<ns0:Subject>False or forged instruments.</ns0:Subject>
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<html:p>Existing law makes it a felony to knowingly procure or offer a false or forged instrument to be filed, registered, or recorded in a public office in this state, which, if genuine, might be filed, registered, or recorded under any law of this state or the United States. After a person is convicted of that crime or a specified waiver is obtained, and upon written motion of the prosecuting agency, existing law requires the court to issue a written order that the false or forged instrument be adjudged void ab initio. Existing law prescribes procedures for a prosecuting agency to file that motion. Existing law requires the court to set a hearing for that motion no earlier than 90 calendar days from the date the motion is made and the prosecuting agency to provide a copy of the written motion and notice of hearing to all interested parties no later than 90 days before the hearing date.</html:p>
<html:p>This bill would instead, if a person is charged with a violation of an above-described crime, require the court, after a hearing on the matter, to issue the above-described order, as specified. The bill additionally would authorize the defendant to alternatively stipulate to the voiding of the false or forged instrument for purposes of the motion. The bill would require the court to, after the prosecution has established by clear and convincing evidence that the instrument is false or forged and that there are no interested parties that would be adversely affected by voiding the instrument, issue the written order, as provided. The bill would instead require the court to set the hearing for the motion no earlier than 30 calendar days from the date the motion is made and the prosecuting agency to provide notice no later than 30 days before the hearing.</html:p>
<html:p>Existing law prohibits a person from being tried or adjudged to punishment
while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated and, if the defendant is found incompetent to stand trial, the criminal proceedings are suspended while the defendant receives treatment, with the goal of restoring the defendant to competency.</html:p>
<html:p>If a defendant enters into the above-described process, this bill would authorize the court to conduct the hearing on the motion to adjudge the false or forged instrument void at any time before or after the defendant is determined incompetent to stand trial.</html:p>
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<ns0:Preamble>The people of the State of California do enact as follows:</ns0:Preamble>
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<ns0:Num>SECTION 1.</ns0:Num>
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Section 115 of the
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is amended to read:
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<ns0:Num>115.</ns0:Num>
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(a)
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Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.
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<html:p>
(b)
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Each instrument which is procured or offered to be filed, registered, or recorded in violation of subdivision (a) shall constitute a separate violation of this section.
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<html:p>
(c)
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Except in unusual cases where the interests of justice would best be served if probation is granted, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following
persons:
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<html:p>
(1)
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Any person with a prior conviction under this section who is again convicted of a violation of this section in a separate proceeding.
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<html:p>
(2)
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Any person who is convicted of more than one violation of this section in a single proceeding, with intent to defraud another, and where the violations resulted in a cumulative financial loss exceeding one hundred thousand dollars ($100,000).
</html:p>
<html:p>
(d)
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For purposes of prosecution under this section, each act of procurement or of offering a false or forged instrument to be filed, registered, or recorded shall be considered a separately punishable offense.
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<html:p>
(e)
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(1)
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(A)
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After
a person is
charged with a violation of this section, upon written motion of the prosecuting agency, the court, after a hearing described in subdivision (f), shall issue a written order that the false or forged instrument be adjudged void ab initio if the court determines that an order is appropriate under applicable law. The order shall state whether the instrument is false or forged, or both false and forged, and describe the nature of the falsity or forgery. A copy of the instrument shall be attached to the order at the time it is issued by the court and a certified copy of the order shall be filed, registered, or recorded at the appropriate public office by the prosecuting agency.
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<html:p>
(B)
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Alternatively, a defendant charged with a violation of this section may stipulate to the voiding of the false or forged instrument. The court, after the prosecution has established by clear and convincing evidence that there are no interested parties that would be adversely affected by voiding the instrument, shall issue a written order that the false or forged instrument be adjudged void ab initio if the court determines that an order is appropriate under applicable law. The order shall state whether the instrument is false or forged, or both false and forged, and describe the nature of the falsity or forgery. A copy of the instrument shall be attached to the order at the time it is issued by the court and a certified copy of the order shall be filed, registered, or recorded at the appropriate public office by the prosecuting agency.
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<html:p>
(2)
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(A)
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If the order pertains to a false or forged instrument that has been recorded with a county recorder, an order made pursuant to this section shall be recorded in the county where the affected real property is located. The order shall also reference the county recorder’s document recording number of any notice of pendency of action recorded pursuant to paragraph (2) of subdivision (f).
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<html:p>
(B)
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As to any order, notice of pendency of action, or withdrawal of notice of pendency of action recorded pursuant to this section, recording fees shall be waived pursuant to Section 27383 of the Government Code.
</html:p>
<html:p>
(f)
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A prosecuting agency shall use the following procedures in filing a motion under subdivision (e):
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<html:p>
(1)
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Within 10 calendar days of filing a criminal complaint or indictment alleging a violation of this
section, the prosecuting agency shall provide written notice by certified mail to all parties who have an interest in the property affected by the false or forged instrument, or in the instrument itself, including those described in paragraph (5).
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<html:p>
(2)
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(A)
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Within 10 calendar days of filing a criminal complaint or indictment alleging a violation of this section, the prosecuting agency shall record a notice of pendency of action in the county in which the affected real property is located.
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<html:p>
(B)
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Within 10 calendar days of the case being adjudicated or dismissed without obtaining an order pursuant to subdivision (e), the prosecuting agency shall record a withdrawal of the notice of pendency of action in the county where the affected real property is located.
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<html:p>
(3)
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The written notice and notice of
pendency of action described in paragraphs (1) and (2) shall inform the interested parties that a criminal action has commenced that may result in adjudications against the false or forged instrument or the property affected by the false or forged instrument, and shall notify the interested parties of their right to be heard if a motion is brought under subdivision (e) to void the false or forged instrument. The notice shall state the street address, if available, and the legal description of the affected real property.
</html:p>
<html:p>
(4)
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Failure of the prosecuting agency to provide written notice or record a pendency of action as required under paragraphs (1) and (2) within 10 calendar days shall not prevent the prosecuting agency from later making a motion under subdivision (e), but the court shall take the failure to provide notice or record a pendency of action as required under paragraphs (1) and (2) as reason to provide any interested parties additional
time to respond to the motion. Failure of the prosecuting agency to so notify interested parties under this subdivision or record a pendency of action as required under paragraphs (1) and (2) within 10 calendar days shall create a presumption that a finding as described in paragraph (9) is necessary to protect the property rights of the interested party or parties.
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(5)
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If the instrument sought to be declared void involves real property, “interested parties” include, but are not limited to, all parties who have recorded with the county recorder in the county where the affected property is located any of the following: a deed, lien, mortgage, deed of trust, security interest, lease, or other instrument declaring an interest in, or requesting notice relating to, the property affected by the false or forged instrument as of the date of the filing of the criminal complaint or indictment.
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<html:p>
(6)
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Any party not required to be noticed under paragraph (1) or (5) who nonetheless notifies the prosecuting agency in writing of the party’s desire to be notified if a motion is brought under subdivision (e) to void the false or forged instrument shall be treated as an interested party as defined in paragraph (1) or (5).
</html:p>
<html:p>
(7)
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The court shall set a hearing for the motion brought by the prosecuting agency under subdivision (e) no earlier than 30 calendar days from the date the motion is made. The prosecuting agency shall provide a copy by certified mail of the written motion and a notice of hearing to all interested parties described in paragraphs (1), (5), or (6), and all other persons who obtain an interest in the property prior to
recordation of notice of pendency of action no later than
30 days before the hearing date set by the court. The notice shall state the street address, if available, and the legal description of the affected real property.
</html:p>
<html:p>
(8)
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If a defendant enters proceedings pursuant to Section 1368, the court may conduct the hearing on a motion brought by a prosecuting agency pursuant to subdivision (e) at any time before or after the defendant is determined incompetent to stand trial. The court may hear the motion without personal participation of the defendant.
</html:p>
<html:p>
(9)
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At a hearing on a motion brought by a prosecuting agency pursuant to subdivision (e), if the court determines by clear and convincing evidence that the instrument
is false or forged, the court may issue a written order described in subdivision (e).
</html:p>
<html:p>
(10)
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The hearing on a motion brought by a prosecuting agency pursuant to subdivision (e) may be held concurrently with the preliminary examination of the defendant pursuant to Section 859b.
</html:p>
<html:p>
(11)
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At a hearing on a motion brought by the prosecuting agency under subdivision (e), the defendant, prosecuting agency, and interested parties described in paragraphs (1), (5), or (6), shall have a right to be heard and present information to the court. No
party shall be denied a right to present information due to a lack of notice by the prosecuting agency or failure to contact the prosecuting agency or the court prior to the hearing.
</html:p>
<html:p>
(12)
<html:span class="EnSpace"/>
(A)
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At a hearing on a motion brought by a prosecuting agency under subdivision (e), if the court determines that the interests of justice or the need to protect the property rights of any person or party so requires, including, but not limited to, a finding that the matter may be more appropriately determined in a civil proceeding, the court may decline to make a determination under subdivision (e).
</html:p>
<html:p>
(B)
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If, prior to the hearing on the motion, any person or party files a quiet title action that seeks a judicial determination of the validity of the same false or forged instrument that is the subject of the motion, or the status of an interested party as a bona fide purchaser of, or bona fide holder of an encumbrance on, the property affected by the false or forged instrument, the court may consider that as an additional but not dispositive factor in making its determination under subdivision (e); provided, however, that a final judgment previously entered in that quiet title action shall be followed to the extent otherwise required by law.
</html:p>
<html:p>
(g)
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As used in this section, “prosecuting agency” means a city attorney, a district attorney, the Attorney General, or other state or local agency actively prosecuting a case under this section.
</html:p>
<html:p>
(h)
<html:span class="EnSpace"/>
An order made pursuant to
subdivision (e) shall be considered a judgment, and subject to appeal in accordance with, paragraph (1) of subdivision (a) of Section 904.1 of the Code of Civil Procedure.
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