In a qualifying California criminal fraud or embezzlement case, a prosecutor can petition the superior court to preserve specified property for possible restitution and fines before trial. A charge alone does not freeze every account. Penal Code section 186.11(d) requires a particular pleading and loss allegation, a petition identifying the property, and a court order. A person served with an order should preserve it and seek counsel promptly rather than move property in violation of its terms.
Check the charging document and the identified property
Section 186.11(d) allows a preservation petition through either of two routes. One is an allegation of at least two related fraud-or-embezzlement felonies and the aggravated white-collar-crime enhancement involving more than $100,000. The other is a charged felony with fraud or embezzlement as a material element, a taking or loss over $100,000, and an allegation of those facts. The enhancement route and the single-felony route are distinct; neither means every theft or fraud charge qualifies.
The prosecutor files the petition in the criminal division where the accusation was filed. It must identify that case and the assets to be affected. Property in the accused person’s control, or certain property transferred to another person after the alleged criminal act other than through a bona fide purchase, may be covered. Read the pleading, petition, asset schedule, and actual order together. A bank notice or account balance alone will not explain why that asset was selected. Section 186.11(d)(1)–(2) governs that initial scope.
An immediate order and a later hearing have different safeguards
The court may issue a temporary restraining order without prior notice pending a hearing, but section 186.11(f)(1) requires good cause for proceeding without notice. The statute allows the court to rely on a peace officer’s sworn declaration based on personal knowledge of the investigation. That declaration must establish probable cause of the qualifying crime and that anticipated restitution and fines equal or exceed the value of the assets restrained; it may use witness hearsay. A preliminary injunction or appointment of a receiver instead requires notice to known and reasonably ascertainable interested persons and a hearing on whether preservation is necessary. Section 186.11(d)(3), (f)(1)
The defendant or a person who has filed a verified property claim can request an order-to-show-cause hearing on whether a temporary order should remain, a recorded real-property notice should be lifted, or an order should be modified. The court must hold it within 10 days after the request is served on the prosecutor, or within two days on a showing of good cause. Those periods are hearing deadlines measured from service of the request, not a general deadline to challenge every asset. At the hearing the court weighs the likely outcome and the danger of dissipation against harm to the defendant and interested people. It may consider release of a portion for reasonable defense fees, necessary living expenses, or bail, but release is not automatic. Section 186.11(f)(2)–(5)
A third-party owner has a separate claim
An interested person can file a verified claim describing the nature and amount of their interest within 30 days after first publication of the petition notice or within 30 days after receiving actual notice, and must serve a verified copy on the district attorney or Attorney General as appropriate. Preserve title, lien, purchase, bank, and transfer records. The court must seek to protect legitimately acquired interests of innocent third persons, including an innocent spouse. These are not the deadlines or forms used in drug forfeiture. Section 186.11(d)(6), (f)(5)
If the qualifying allegation is dismissed or found untrue, the preservation order must be dissolved. When a jury cannot reach a unanimous verdict, the court may continue or dissolve all or part of the order in the interests of justice. If the prosecutor elects not to retry the case, the order must be dissolved. A postconviction levy is another decision and depends on the required conviction and admitted or proven facts; a pretrial order is not itself a final forfeiture. Section 186.11(g)–(h) Counsel can review the exact order, service dates, declaration, and property records before seeking modification. For related charge information, see the Law Offices of David S. Chesley’s white-collar-crime defense page. Call (800) 755-5174 to discuss the order and identified assets.