
    [No. B010193.
    Second Dist., Div. Two.
    May 31, 1985.]
    FRANCHISE TAX BOARD, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; ROBERT W. McKEAN et al., Real Parties in Interest.
    
      Counsel
    John K. Van de Kamp, Attorney General, Edmond B. Mamer and Diane M. Spencer, Deputy Attorneys General, for Petitioner.
    No appearance for Respondent.
    Overland, Berke, Wesley, Gits, Randolph & Levanas, Mark E. Overland, Stanley L. Dorn and Carl Burkow for Real Parties in Interest.
   Opinion

ROTH, P. J.

On February 9, 1983, Robert McKean was arrested and charged with possession of controlled substances for sale, a violation of Health and Safety Code section 11351. The police seized $171,785 and a large quantity of jewelry and firearms.

On February 10, McKean executed the following assignment; “In consideration of Carl Burkow, Attorney at Law, representing me in the criminal proceedings arising out of my arrest by officers of the Los Angeles Police Department on February 9, 1983. I Robert William McKean hereby assign to Carl Burkow, all of my rights, title and interest in and to all of the money seized by said Officers in the approximate sum of $171,185.00 (one hundred seventy one thousand one hundred eighty five dollars). I hereby direct and authorize the Los Angeles Police Department to release said funds to my said Attorney. ” Personal property also embraced in the assignment is set forth in the appendix attached hereto.

On February 10, 1983, the Franchise Tax Board (Board) issued and delivered to the police department 10 minutes after Burkow presented his assignment an “order to withhold personal income tax” pursuant to Revenue and Taxation Code section 18817. The order to withhold directed the police department to withhold and transmit $217,076 to the Board to satisfy an assessment for personal income taxes.

On February 10, 1983, the Los Angeles District Attorney filed in court a petition for forfeiture pursuant to Health and Safety Code section 11470, seeking forfeiture of the money and property seized at McKean’s arrest. The district attorney also filed a request for order prohibiting release of property seized. That order issued February 11, 1983.

McKean filed an answer to the district attorney’s petition for forfeiture on March 4, 1983. The hearing on the forfeiture petition was held over a year later, on December 17, 1984. The district attorney was represented at this hearing, but the Franchise Tax Board was not.

Following defendant’s plea of no contest to the charged offense, a forfeiture hearing was held in December 1984. Present at the hearing were the district attorney and defendant’s counsel; no representative of the Franchise Tax Board attended. The trial court found $40,000 of the cash traceable to drug transactions and thus ordered it forfeited; the remainder of the property was to be returned to defendant. The only reference to the Franchise Tax Board lien occurred in the following colloquy:

“The Court: All right. The court will find the $40,000 found by the cocaine was related to that. But I—the other matter, the guns, the jewelry and the other money found in the safe will be ordered—who is that returnable to?
“[Deputy DA:] I don’t know. It can be ordered returned to the attorneys, your honor.
“I understand there is a Franchise Tax Board lien against some of that property, if not all of it. I don’t know the status of that.
“[Defendant’s Counsel:] The purpose of these proceedings is for the court to make an order. If in fact there was any lien on that property, this court would have no jurisdiction under 11470 of the Health and Safety Code.
“As long as this proceeding was filed by the District Attorney’s Office, the court has jurisdiction to make that order.
“The Court: I have to order it returned.
“The court will find the $40,000 is—may be kept by the District Attorney’s Office. The other items, the guns, the jewelry and the money found in the other safe will be ordered returned.
“[Deputy DA:] Fine.”

Defense counsel was instructed to prepare an appropriate order and the matter was continued until January 8, 1985.

The only explanation we have for this absence is the following statement made at a later hearing on January 8, 1985:

“The problem was it didn’t get to the attorneys—it did not get to the Attorney General’s Office. Apparently there were some people in our office, in the District Franchise Tax Board Office who had knowledge of the forfeiture proceeding but it never got over to legal—.” The only mention of the Board’s order to withhold during the December 17 hearing is the following statement of the deputy district attorney: “I understand that there is a Franchise Tax Board lien against some of that property, if not all of it. I don’t know the status of that.” Respondent court found that $40,000 was forfeitable, while the balance of the money and all of the personal property was not. Counsel for McKean, Burkow and Overland, were directed to prepare an order. Burkow and Overland presented their proposed order, which provided for return of all the property assigned except that forfeited by reason of the lien filed by the district attorney to them. Board, through its attorney, protested. Board requested that the proposed order be modified to provide that nonforfeited property remain subject to any order to withhold issued by the Franchise Tax Board. Respondent court refused the request. This petition for alternative or peremptory writ of mandate followed. We issued the alternative writ.

Wholly aside from the fatal legal defects hereafter discussed, we hold that the record on its face shows that the assignment is presumptively fraudulent. Generously construed it may be considered to be a pledge in the sum of approximately $200,000 cash plus other property of substantial value to secure payment of reasonable attorney’s fees after full satisfaction of the claims of Franchise Tax Board and the district attorney.

Initially we are confronted with the fact that Health and Safety Code section 11470 was amended effective January 29, 1985, while the action was pending. We must determine which version is controlling. The general rule is that a statute will not be applied retroactively unless the Legislature clearly intended that result. (Pacific Intermountain Express v. National Union Fire Ins. Co. (1984) 151 Cal.App.3d 111, 781 [198 Cal.Rptr. 897].) We find no indication, and the parties have brought none to our attention of a legislative intention to apply the changes retroactively. Therefore, the 1985 amendment should have been ignored.

The relevant version of Health and Safety Code section 11470 states in part: “The following are subject to forfeiture: . . .

“(f) With the exception of moneys, negotiable instruments, securities, or other things of value upon which the Franchise Tax Board has served a notice to withhold pursuant to the provisions of Section 18817 or 26132 of the Revenue and Taxation Code, all moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance ... To the extent that any moneys, negotiable instruments, securities, or other things of value are returned or refunded by the Franchise Tax Board to the taxpayer as a result of a redetermination or abatement of the tax due subsequent to the serving of a notice to withhold, such things of value shall be subject to the forfeiture provisions of this subdivision. ” (Italics added.)

The language of the statute is quite plain: If the Board has issued an order to withhold, the property is not subject to forfeiture proceedings. Only after the Board has returned or refunded the property may the district attorney seek forfeiture. Thus, the court below had no jurisdiction to dispose of the subject property in the forfeiture proceeding.

Parties in interest raise a number of objections to avoid this result. First, they assert the trial court did not err because the Franchise Tax Board made no appearance at the December hearing and it cannot be faulted for failing to honor the Franchise Tax Board order to withhold because the order was not properly brought to the attention of the court.

The simple answer is that the court did in fact know of the order and set aside an order of another department of the superior court which did order such hold. At the December 17 hearing, in answer to the court’s question, “Who is [the property] returnable to?” the deputy district attorney replied, “I don’t know. It can be ordered returned to the attorneys, your Honor. I understand there is a Franchise Tax Board lien against some of that property, if not all of it. I don’t know the status of that.” Admittedly, this answer leaves much to be desired from the point of view of clarity; it nevertheless apprised the trial court of the probability it lacked jurisdiction. All that doubt was removed at the January 8 hearing in which an attorney for the Board appeared and asserted the Board’s superior claim. There would have been no difficulty in recognizing the Board’s right to the property, since at that moment the order had not been signed. The court abused its discretion by saying, “What I intended to do was just release the stuff and then the attorneys and the Tax Board and the Attorney General can argue about that. I’m not involved in that.”

Pragmatically, real parties do not actually claim that the court did not “know” of the order to withhold. Their argument is that no “evidence” of the order to withhold was presented. They assert that oral representations by counsel to the lower court do not constitute evidence which can be considered in reviewing the lower court’s ruling.

We do not agree. The cases which real parties cite simply hold that the appellate court may not rely on evidence which was not before the trial court. (See Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 93-94 [154 Cal.Rptr. 494]; Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 587 [147 Cal.Rptr. 915]; Derry v. Superior Court (1968) 266 Cal.App.2d 556, 559-560 [72 Cal.Rptr. 313].) We hold that counsel’s oral representations and the prior hold order were adequate evidence of the order to withhold.

Real parties next argue that the Board cannot raise the question of lack of jurisdiction for the first time on review. “ ‘Ordinarily, a reviewing court will not grant prohibition until an objection to jurisdiction has been made and overruled in the lower court, since it is assumed that any valid objection properly brought to the attention of that court will prevail.’ ” (Schaeffer v. Municipal Court (1968) 260 Cal.App.2d 819, 821 [67 Cal.Rptr. 479].)

Real party Mark E. Overland stated at the January 8 hearing, “The problem with this thing is that this court would not have had jurisdiction except for the fact if, in fact, there would have been a Franchise Tax Board lien on this property. Section 11470 of the Health and Safety Code specifically states that the court has jurisdiction when there is no Franchise Tax Board lien.” There is no merit to the notion that the jurisdiction issue was not raised. By issuing the order which is the subject of this writ proceeding, it implicitly settled the jurisdiction question adversely to the Board.

Finally, real parties contend that the writ should not issue because on the merits they have a better claim than the Board. They base this claim on Government Code section 7170, subdivision (c), which states in part: “A state tax lien is not valid as to personal property against: ... (2) Any person (other than the taxpayer) who acquires an interest in the property under the law of this State without knowledge of the lien or who perfects an interest in accordance with the law of this State prior to the time that the notice of state tax lien is filed with the Secretary of State pursuant to [Government Code] section 7171.”

Real parties argue that McKean assigned his rights in the seized property to Burkow the day after his arrest. They further affirm they presented the assignment to the Los Angeles Police Department ten minutes before the police received the Board’s order to withhold. They conclude that these assertions put them within the orbit of section 7170. Based on our conclusion the purported assignment was invalid, however, the contention must be rejected.

The alternative writ is discharged. Let a peremptory writ of mandate issue compelling respondent court: (1) to vacate its judgment entered on January 8, 1985, to the extent that it required forfeiture in favor of the district attorney and permitted Robert W. McKean to recover itemized property and money and ordered the People of the State of California to turn over said property and cash to Carl Burkow and/or Mark Overland, and (2) to enter a new and different order releasing said property and money to the Franchise Tax Board. The temporary stay order issued by this court on January 18, 1985, is to remain in effect pending the finality of this decision.

Beach, J., and Gates, J., concurred.

Appendix

1. U.S. Currency Mise Bills $131,785.00

One hundred thirty one thousand and seven hundred eighty five Dollars.

2. U.S. Currency, Mise Coins $195.43 and Vi cents

3. U.S. Currency, 1-Silver Dollar, 3-$20.00 Gold pieces, 3-$10.00 Gold pieces, 2-$5.00 Gold

pieces, 2-$2.50 Gold pieces Total $106.00

4. 1 Gun-Auto 07074 Browning .380 w/clip nickel plated.

5. 1 Gun-Rev SA 15461 Colt .45 Blue Steel

6. 1 Gun-Rev 4656839 Ruger .45 Blue Steel

7. 1 Gun-Rev SA 32175 Colt .44 Nickel

8. 1 Gun-Auto 251415S Walther PPK 9MM Blue Steel

.380 (2) Magazines

9. 1 Gun-Auto 251416S Walther PPK 9MM Blue Steel

.380 (2) Magazines

10. 1 Gun-Auto 251417S Walther PPK 9MM Blue Steel

.380 (2) Magazines

11. 1 Gun-Auto 251418S Walther PPK 9MM Blue Steel

.380 (2) Magazines

12. 1 Gun-Auto 251419S Walther PPK 9MM Blue Steel

.380 (2) Magazines

13. 1 Gun-Auto 251420S Walther PPK 9MM Blue Steel

.380 (2) Magazines

14. 1 Gun-Rev CR0911x3 S&W Mod. .44 Mag. in Wood Case

S0N78O162 629 Stainless Steel

15. 1 Gun-Rev CR#811x7 S&W Mod. .41 Mag. in Wood Case

S0774696 57 Nickel Plated

15. 1 Gun-Rev CR039788 S&W Mod. .38 Cal in Suede Case

14.4 Blue Steel

16. 1 Gun-Rev CR#81164 S&W .22 Cal in Grn Suede Case

Sff 83K3065 Blue Steel

17. 1 Gun-Rev S#49785 UNK MAKE .45 Cal single action

18. 1 Gun-Auto 245PM36666 Browning 9MM in blk case,

w/magazine

19. 1 Gun-Auto 425PZ16181 Browning .380 Cal No Magazine

w/tan suede case

20. 1 Gun-Rev CR#56725 S&W Mod .22 Cal Stainless Steel

S#M137360 63 in blk case.

21. 1 Gun-Rev CR#54351 S&W Mod .22 Cal in red suede

S^M134647 63 case. Stainless steel

22. 1 Gun-Auto S#B90962Y Beretta .9 Short Cal Double Action

Blue Steel

23. 1 Gun-Rev SA27778 Colt .44 Cal Blue Steel

24. 1 Gun-Rev SA38606 Colt .357 Mag Blue Steel

25. 1 Gun-Rev CR#34043 S&W Mod .22 Cal in bm suede case

S085KO647 48-4 Blue Steel

26. 1 Gun—Single Shot Pistol

S#31861 Stevens .22 Cal Blue Steel

Leather holster

27. 1 Gun-Auto 245RN55035 Browning .9MM Blue Steel blk.case.

28. 1 Gun-Auto SI 10506 Sigsauer Mod 380 Cal Blue Steel

P230 in red box 2 magazines

29. 1 Gun-Rev V94744 Colt Python .357 Mag Nickel Plated

in brn. suitcase

30. 1 Gun-Rev S#CJWC2715 Colt .45 Cal. John Wayne Commem.

no grip Blue & Gold Colors

31. 1 Gun-Rev NB0263 Colt .45 Cal Buntline Commem.

in wood display case

w/ ammo (6) rounds Nickel Plated.

32. 1 Gun-Rev CJWC2111 Colt .45 Cal John Wayne Commem.

Blue&Gold colors

33. 1 Gun-Rev SA38066 Colt .357 Mag. Blue Steel

34. 1 Gun-Rev S#98774M Colt .38 Special Blue Steel

35. 1 Gun-Rev CR058976 S&W Mod 27-2 .357 Mag. Blue Steel

S#N757973 in wood case.

36. 1 Gun-Rev CR091X58 S&W Mod .57 .41 Mag Blue Steel

S#N707784 in wood case

37. 1 Gun-Rev CR#2X963 S&W Mod 29.2 .44 Mag Blue Steel

S#N798866 in wood case.

38. 1 Gun-Rev CR#33823 S&W Mod 25-5 .45 Long Colt Blue Steel

S#N737160 Wood Case

39. 1 Gun-Rev CR079627 S&W Mod 29-2 .44 Mag. Blue Steel

N 772432 Wood Case

40. 1 Gun-Auto S#BE05720V Beretta Mod. 20 .25 Cal. Blue Steel

in Blue Box

41. 1 Gun-Auto S#BE05725V Beretta Mod 20 .25 Cal. Blue Steel

in Blue Box

42. 1 Gun-Auto S#8843147 Browning .22 Cal in Orange Case

Blue Steel

43. 1 Gun-Rev CR#03703 S&W Mod 60 .38 Cal. Stainless Steel

S#R312064

44. 1 Gun-Auto S#245PM36668 Browning 9MM Blk Case Blue Steel

45. 1 Gun-Rev CR#88746 S&W Mod 68-6 .357 Mag. Stainless Steel

S#AAL4669

46. 1 Gun-Rev CJWC2100 Colt .45 Cal. John Wayne Comm. No Grip

Blue&Gold Color

47. 1 Gun-Rev SA46535 Colt .357 Mag Single Action Army

Nickel Plated

48. 1 Gun-Rev SA31041 Colt .357 Mag Single Action Army

Blue Steel

49. 1 Shotgun N259790 Nikko Mod 5000-11 .410 GA Over/Under

90. 1 Shotgun 13100PM173 Browning Citori .28 GA Over/Under

91. 1 Shotgun 21032AL410 El Faiban unk. Ga. Double Barrel

52. 1 Shotgun 08159PM183 Browning 410 GA. Over/Under

53. 1 Shotgun N357252H Remington Model 1100 .410GA. Automatic

54, 1 Shotgun FB08701 S&W Mod 1000 .20 GA. Automatic

55. 1 Shotgun 02986RN168 Browning .20GA Double Barrel

56. 1 Shotgun 16933RN153 Browning . 12GA Over/Under

57. 1 Shotgun 01887PM168 Browning .20GA Double Barrel

58. 1 Shotgun 08109RP273 Browning .28GA Over/Under

59, 1 Shotgun 13446RN163 Browning .20GA Over/Under

60. 1 Shotgun K621684 Nikko Mod 5000 .12GA Over/Under

61. 1 Shotgun N259303 Nikko Mod 5000 .20GA Over/Under

62. 1 Shotgun N259280 Nikko Mod 5000 .20GA Over/Under

63. 1 Shotgun 15242PM183 Browning Citori Grade ,410Ga. Over/Under

64. 1 Rifle 15934 Navy Arms Mod. 66 44/40 Cal Lever Action

65. 1 Rifle 508511 Sako Finnbear 30-06 Cal. W/Scope

Bolt Action

66, 1 Rifle V47240 Weatherby Vanguard .243 Cal. W/Scope

Bolt Action

67. 1 Rifle 96234 Buger Mod 10-22 .22 Cal Automatic

68, 1 Rifle K015709 Rossi Mod. 92 .357 Mag Lever Action

69. 1 Rifle 02139PZ226 Browning BL 22 .22 Cal. Lever Action

70. 1 Rifle 20097507 Marlin Mod 4444s 444 CAL Lever Action

71. 1 Rifle 23-919668 Squires-Mod 20 ,22Cal

Bingham

w/Scope Automatic no magazine

72. 1 Rifle 102-78132 Ruger Carbine ,44Mag Automatic

no Magazine

73. 1 Rifle AI 169793 Sako .17 Cal. w/Scope Bolt Action

74, 1 Rifle JW8633 Winchester Mod. 94 .32-40 Cal Carbine

John Wayne Commem. in box

75. 1 Rifle JW8631 Winchester Mod 94 32-40Cal Carbine

John Wayne Commem. in box

76. 1 Rifle 132-06407 Ruger Mod 1 .458 Winchester Mag.

77. 1 Shotgun L13399519 Winchester .12 Ga Pump Ranger

in box

78. 1 Rifle LF09364 Winchester Mod 94 38-55 Cal.

Frontiersmen in box

79Í 1 Shotgun V007971M Remington 870 Wingmaster .12Ga

w/(3) Barrels in tan case

80. 1 Rifle JW12651 Winchester Mod 94 32-40 Lever Action

John Wayne Commem. in box

81. 1 Rifle JW12650 Winchester Mod 94 32-40 Lever Action

John Wayne Commem. in box

00 ts> 1 Rifle JW12649 Winchester Mod 94 32-40 Lever Action

John Wayne Commem. in box

83. 1 Rifle JW12648 Winchester Mod 94 32-40 Lever Action

John Wayne Commem. in box

84. 1 Rifle AI162815 Sako .222 Cal Bolt Action w/Scope

85. 1 Rifle A6493814 Remington Mod 700 .458 Cal Bolt Action

w/Scope

86. 1 Rifle AIII550961 Sako 7MM Remington Mag Bolt Action

w/Scope

87. 1 Rifle 1III552438 Sako .270 Winchester w/Scope

Bolt Action

88. 1 Rifle H121246 Weatherby Mark V 300 Mag. Bolt Action

w/Scope

89. 1 Rifle BB024213 Winchester Mod 94 Lever Action/sling

.376 Winchester

90. 1 Rifle 75-26096 Ruger Mod 77 .270 Winchester

w/Scope/Bolt Action

91. 1 Ring, Y/M w/ Rams Head

92. 1 Spoon, Y/M w/Lady

93. 1 Ring, Y/M w/2 green and 3 white stones

94. 1 Ring, W/M w/ Colored stone square

95. 1 Spoon, Y/M w/ Devil

96. 1 Ring, W/M w/ lgm & 1 biege stone

97. 1 Ring, Y/M w/ blk stone

98. 1 Ring, Y/M w/7 white stone

99. 1 Ring, Y/M w/3 wht.&l blk stone

100. 1 Ring, Y/M band

101. 1 Ring, Y/M Band w/wht stone

102. 1 Pendant, Y/M Round

103. 1 Watch, Y/M “Rolex” W/Y/M Band

104. 3 Chains, Y/M Flat

105. 1 Ring, Y/M No Stone

106. 1 Watch, pocket w/m “Walthan” W/W/M chain

107. 1 Pendant, Wht w Indians Head

108. 1 Initial, Y/M “R”

109. 2 Bracelets, Y/M

110. 1 Pendant Y/M “Gun”

111. 1 Pendant, Y/M W colored stone

112. 1 Pendant, Y/M W Eagle

113. 1 Ring, Y/M W Red Stone

114. 1 Pendant, Y/M Elephant

115. 5 Pendant “Eagle” Y/M

116. 1 Chain, Rope Y/M

117. 1 Pin, Mickey Mouse

118. 1 Pin, Y/M Animal Face

119. 2 Bracelets Y/M

120. 5 Neck Chains, Y/M

121. 1 Neck Chain, Y/M W Parrot pendant

122. 1 Pendant, Y/M Triangle

123. 1 Pendant, Y/M Scuba Diver

124. 1 Pendant, Y/M Snowlake

125. 1 Neck Chain, Y/M W/ Y/M Nugget W/ Wht Stone

126. 1 Watch, Wrist Y/M W Y/M and “Waltham"

127. 1 Necklace, W/M Squash Blossom W/ 1 Blue & 1 Red Stone

128. 1 Stone Wht. Rd.

129. 1 Necklace, Bm/Black

130. 1 Plastic Bags pieces of broken chains

131. 1 Ring, W/M Indian

132. 1 Watch, Wrist Y/M “Seiko”

133. 1 Watch, Wrist W/M “Seiko”

134. 1 Bottle, Y/M Flakes

135. 1 Bag, Y/M parts

136. 4 Neckchains W/M

137. 1 Neck chains W.M W/tooth

138. 1 Neck chain W/M W/dragon

139. 1 Neck chain W/M W/ cut out coin

140. 1 Toothpick Y/M W/“B”

141. 10 Ingots W/M

142. 1 Y/M Coin in Y/M Bezel

143. 6 Ornaments, W/M in Boxes

144. 4 Trays containing 96 W/M coins “50 Shillings”

145. 1 Rings, Y/M Wht 1 Large 1 small Wht stones

146. 3 Coins, W/M “50 Shilling"

147. 14 Coins, Foreign in plastic cases.

148. 9 Coins, Republic of India Proof Set

149. 2 Bills, 1 Peso

150. 1 Bill, 10 Peso

151. 490 Foreign coins, mise.

152. 1 Box Wood containing Two Knives “Gerber” Ser.#0081

153. 1 Box containing mise, paperwork

154. 1 Air Pistol “Powerline” Model 717 in Box

155. 4 Scales, Digital Electric Balance 3 in Wht Metal Case #Ser, 2374820/2371239/2060731/2374819

156. 2 Boxes, Wood Gun “John Wayne” in Cardboard Boxes

157. 1 Flashlights “Mag-lite Blk 4 cell Ser#40206242

158. 4 Flashlights “Mag-lite Blk 3 Cell Ser# 30271357

# 30250477

# 30271654

# 30271954

159. 1 Rifle, Air “Bigamo” 22 Cal. Ser # 223514 W/Scope  