APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. BA242217).
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PUBLICATION
Cyrus Cardan appeals the judgment (order of forfeiture) entered in forfeiture proceedings under Health and Safety Code section 11470 et seq. related to $10,153.38 seized by the Los Angeles Police Department at the time of Cardan's arrest for possession for sale of cocaine base and marijuana in violation of Health and Safety Code sections 11351.5 and 11359.*fn1
Cardan contends reversal is required because the forfeiture proceeding was not tried in conjunction with the underlying criminal offense as required by section 11488.4, subdivision (i)(5). Construing the forfeiture statute strictly, as we must, we conclude the failure to try the forfeiture proceeding in conjunction with the underlying criminal case precludes entry of an order of forfeiture. Consequently, we reverse and remand for further proceedings.
On January 21, 2003, City of Los Angeles police officers arrested Cardan in the hotel room where he resided and charged him with possession for sale of cocaine base and marijuana. (§§ 11351.5, 11359.) The officers seized 150 grams of cocaine base, 400 grams of marijuana and the $10,153.38 at issue here. While Cardan was in custody awaiting trial on the criminal charges, the People served notice of the right to oppose forfeiture of the funds. (See § 11488.4, subd. (c).) Cardan immediately filed a claim opposing forfeiture of the $10,153.38.*fn2 A week later, the People filed a petition of forfeiture which alleged the funds were the proceeds of narcotics trafficking within the meaning of section 11470, subdivision (f).
Cardan's criminal case went to jury trial in September of 2003. The People's evidence indicated Cardan sold narcotics from his hotel room. Cardan's defense was that he sold candy, cigarettes and soda from his hotel room and the money seized by the police was the proceeds of those sales, not drug sales. Cardan was convicted as charged and sentenced to prison. The forfeiture action was not tried in conjunction with the criminal case. This court affirmed Cardan's conviction. (People v. Cardan (Feb. 28, 2005, B171861 [nonpub. opn.].)
On May 17, 2006, two and a half years after Cardan was sentenced to prison, the People served requests for admission (RFAs) on Cardan which asked Cardan to admit he had abandoned the claim opposing forfeiture of the funds and that this abandonment constituted a waiver of the claim opposing forfeiture. Twenty days later, Cardan responded by filing a "Petition for Return of Property" which alleged the $10,153.38 was seized based on a search warrant issued on false statements, the forfeiture issue was not tried with Cardan's criminal case and the one- year statute of limitations for filing a petition of forfeiture had expired.
2. The Trial Court Rules the RFAs are Deemed Admitted and Grants Summary Judgment in Favor of the People
The People filed a motion for an order deeming the RFAs admitted based on Cardan's failure to respond as contemplated by the Civil Discovery Act. At the hearing on the motion, the prosecutor indicated the People sought discovery in this case in 2003 but Cardan failed to respond. The People served a second set of RFAs in 2006 to give Cardan another chance to respond.
The trial court took the matter under submission and thereafter granted the People's motion. The trial court subsequently granted a motion for summary judgment in favor of the People and entered an order for forfeiture and disbursement of the funds. This appeal followed.
1. Statutory Provisions Related to Forfeiture of Drug Proceeds
The procedure for the forfeiture of property connected with unlawful drug transactions is governed by sections 11470 through 11489. Moneys, negotiable instruments, securities, or other things of value which are the proceeds of a drug transaction, or are used to facilitate the violation of ...