BILL ANALYSIS
AB 2886
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Date of Hearing: April 18, 2006
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2886 (Frommer) - As Introduced: February 24, 2006
SUMMARY : Increases several penalties relating to identity
theft. Specifically, this bill :
1)States if a person has been previously convicted of possession
of personal identifying information, with intent to defraud,
and subsequently convicted of possessing personal identifying
information, with intent to defraud, he or she shall be
punished by imprisonment in the county jail for a maximum of
one year or by 16 months, 2 or 3 years in state prison; a fine
not to exceed $10,000; or by both imprisonment and fine.
2)Provides that any person, with the intent to defraud, sells,
transfers, or conveys the personal identifying information of
another without consent, is guilty of grand theft punishable
by up to one year in the county jail or 16 months, 2 or 3
years in the state prison.
3)Specifies that any person who, within a 12-month period,
acquires the personal identifying information of four or more
people which he or she knows or has reason to know was taken
or retained with intent to defraud is guilty of grand theft,
punishable by up to one year in the county jail or 16 months,
2 or 3 years in the state prison.
4)Creates a two-year penalty enhancement for every person
convicted of a prior felony identity theft or conspiracy to
commit identity theft, as specified, and shall be imposed in
addition to any other enhancement, as specified, even if the
prior felony conviction did not result in a term of
imprisonment.
5)Authorizes a criminal prosecution in the jurisdiction where
the victim of identity theft resided at the time of the
offense.
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EXISTING LAW :
1)Every person who willfully obtains personal identifying
information, as specified, of another person and uses that
information for any unlawful purpose, including to obtain, or
attempt to obtain, credit, goods, services, or medical
information in the name of the other person without the
consent of that person, is guilty of a public offense; and
upon conviction, shall be punished either by imprisonment in a
county jail not to exceed one year, a fine not to exceed
$1,000, or both that imprisonment and fine; or by imprisonment
in the state prison, a fine not to exceed $10,000, or both
that imprisonment and fine. [Penal Code Section 530.5(a).]
2)Defines "personal identifying information" as the name;
address; telephone number; health insurance identification
number; taxpayer identification number; school identification
number; state or federal driver's license number or
identification number; social security number; place of
employment; employee identification number; mother's maiden
name; demand deposit account number; savings account number;
checking account number; PIN (personal identification number)
or password; alien registration number; government passport
number; date of birth; unique biometric data including
fingerprint, facial scan identifiers, voice print, retina or
iris image, or other unique physical representation; unique
electronic data including identification number, address, or
routing code; telecommunication identifying information or
access device; information contained in a birth or death
certificate; or credit card number of an individual person.
[Penal Code Section 530.5(b).]
3)Requires that if a person is convicted of the crime specified
in current law, the court record shall reflect that the person
whose identity was falsely used to commit the crime did not
commit the crime. [Penal Code Section 530.5(c).]
4)States that every person who, with the intent to defraud,
acquires, transfers, or retains possession of the personal
identifying information, as defined, of another person is
guilty of a public offense; and upon conviction of, shall be
punished by imprisonment in a county jail not to exceed one
year; a fine not to exceed $1,000; or by both that
imprisonment and fine. [Penal Code Section 530.5(d).]
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5)Provides a response remedy if a person victimized by identity
theft is subsequently sued. If the person can prove by a
preponderance of evidence that he or she was the victim of
identity theft, he or she is entitled to compensation for
having to defend against the claim. Compensation depends on
the suing party having notice that the opposing party might
have been the victim of identity theft. [Civil Code Section
1798.93(a), (b), and (c).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Since the
advent of the information age, identity theft has become one
of the most common financial crimes in California and a
significant source for illegal purchasing and production of
illegal and dangerous drugs. This crime, which victimizes a
growing number of Californians every year, can be financial
ruinous, yet identity thieves receive a slap on the wrist for
all the damage they cause in the lives of these victims.
Others states have taken the initiative to enact laws
addressing mail theft , a primary source for perpetrating
identity theft as well as identity theft trafficking.
Moreover, in identity theft cases, victims are often
victimized a second time by being asked to travel great
distances to testify in far away counties where those cases
are prosecuted because our focus on the illegal purchasing of
goods, not on the act of identity theft itself. California
has a deplorable standing nationwide, ranking in third as the
state with the highest number of identity theft victims. It
is time that California begin to ratify laws similar to those
spearheaded by other states. Protecting residents from these
crimes should be a top priority for California. As identity
theft and mail theft become rampant crimes, we need to give
local law enforcement and the courts the legal authority and
tools necessary to aid victims."
2)Background : According to information provided by the author,
" According to the Federal Trade Commission's data, California
had a reported 4 5,175 victims of identity theft in 200 5 .
California ranked third in the nation with 12 5 victims of
identity theft per 100,000 people . The Cities of Los Angeles,
San Diego, San Francisco, Sacramento and San Jose have the
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highest number of identity theft victims in California.
Further, the data only includes the number of complaints the
Federal Trade Commission received from identity theft victims
and actual numbers are likely to be significantly higher.
Unfortunately, millions of Americans nationwide unknowingly
are victimized by this crime every year. A victim only learns
that his or her identity was stolen when excessive charges are
made to a victim's credit cards, bill collectors start
plaguing him or she with harassing calls on loans and credit
card accounts he or she had never opened or a home loan is
denied because of a ruined credit record. This discovery
triggers a financial nightmare that can take months, and even
years, to correct. According to some estimates, one-half of
identity theft victims can spend an average of 330 hours
attempting to repair the damage incurred by the fraudulent use
of their personal identifying information. In order to
preclude this non-violent, yet emotionally scarring offense
from occurring, local law enforcement and courts must be given
the tools necessary to battle and prevent these crimes.
"An increasingly popular gateway for identity theft and fraud is
mail theft. Criminals are able to steal important financial
documents from mailboxes for the purpose of using or selling
that information fraudulently. Unfortunately, enforcement of
mail theft is exclusively left to the United States Postal
Inspection Service, which does not have the manpower to
adequately address every alleged mail theft crime. High
priority is given to 'volume attacks', where an organized ring
is believed to be involved in the stealing of mail. Low
priority is given to an individual who reports a mail theft,
especially if the theft is regarded as an isolated incident.
The increasing prevalence of mail theft is one factor driving
the popularity of one of the most common forms of identity
theft today: personal information trafficking. Trafficking
occurs when an individual steals and subsequently sells the
personal identifying information or personal profiles of
others. The personal identifying information of the victims
is then utilized to commit identity and/or financial fraud.
"This bill will address both of these serious offenses,
providing citizens with increased protections against identity
theft and establishing stricter penalties for criminals.
Under this bill, the stealing and selling of multiple profiles
will become a felony in California. In addition, this bill
will authorize local law enforcement to investigate and
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prosecute mail theft, supplementing the authority of the
United States Postal Service to enforce organized mail theft
crimes and ensuring that individual citizens are given the
attention they deserve. Additionally, creating an alternate
misdemeanor-felony for the theft of mail will grant courts and
prosecutors the ability to exercise discretionary authority in
every case, thus allowing them to distinguish between
low-level misdemeanor offenders and felony offenders.
California will be following Oregon and Minnesota's lead in
ratifying a mail theft state law. As identity theft becomes a
prevalent crime, we need to offer viable remedies to deal with
identity theft cases. Providing the courts with the legal
power necessary to prosecute these crimes in the county where
the victim resides will greatly aid in this battle.
"Current state law requires the prosecution of identity theft
cases in the county where an individual's personal or
financial information was stolen or where the information was
unlawfully utilized . Unfortunately, these crimes are often
prosecuted far away from the county in which the victim
resides, often times forcing the victim to endure additional
and unnecessary hardships in order to participate in the
trial. Extending the jurisdiction of prosecution in these
crimes will alleviate some of the victim's burden by allowing
the victim to partake in the case without having the
inconvenience of having to testify in a distant county or
forcing a victim to waste additional work and personal time.
"Therefore, this bill:
a) "Stiffens penalties for acquiring, stealing, or selling
a person's identifying information;
b) "Makes it a felony to acquire, steal, or sell four or
more identity profiles within a 12-month period;
c) "Creates a state crime for mail theft in California;
d) "Classifies mail theft as a misdemeanor or felony;
e) "Allows for the venue of prosecution, in cases involving
mail theft, to take place in the county the mail theft
occurred or the county of where the victim resides; and,
f) "Extends the venue of prosecution in identity theft
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cases to include the county where the victim resided at the
time the crime occurred."
3)Grand Theft : This bill seeks to punish certain provisions of
identity theft as grand theft. If a person transfers or sells
the personal identifying information of another person with
the intent to defraud, he or she may be sentenced to state
prison. Under current law, grand theft is the taking of
property that exceeds $400 in value. The punishment is a
maximum of one year in the county jail or by imprisonment in
the state prison for a period of 16 months, 2 or 3 years
[Penal Code Sections 487(a) and 489]. Personal identifying
information, in and of itself, generally does not reach the
$400 threshold for grand theft. Hence, it is not appropriate
to charge the offender with grand theft because to do so would
frustrate the purpose of that statute. Also, under existing
law, any person who willfully obtains the personal identifying
information for an unlawful purpose may be sentenced to state
prison. If the People are able to demonstrate the offender
willfully obtained another's personal identifying information,
he or she may be sentenced to felony identity theft. Existing
penalties seem adequate.
4)Proposed Penalty Enhancement : This bill requires a court to
sentence an offender convicted of identity theft to an
additional two years for every prior conviction of identity
theft. This bill also states that this enhancement must be
consecutive to any additional time imposed on the defendant
pursuant to Three Strikes. Under current law, if a defendant
has been previously convicted of a serious felony, as
specified, when he or she is sentenced to another serious
felony, the court impose an additional five years. (Penal
Code Section 667.) If a defendant has been previously
convicted of violent felony, as specified, when he of she is
sentenced for another violent felony, the court must impose an
additional three years. [Penal Code Section 667.5(a).] If a
defendant has been previously convicted of any felony when he
or she is sentenced for another felony, the court must impose
a one-year enhancement. [Penal Code Section 667.5(b).] If a
person takes more than $50,000, the court may sentence the
offender to an additional one year. [Penal Code Section
12022.6(a)(1).] Hence, other enhancements are available and
seem sufficient.
Penal Code Section 654 prohibits double punishment for the same
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act. [See also, Penal Code Section 1170.1(g)]. The rule that
provides that a "special statute" controls over a "general
statute" generally applies where two substantive offenses
compete; however, it has also been applied in the context of
enhancement statutes. [ People vs. Coronado (1995) 12 Cal.4th
145; People vs. Prather (1990) 50 Cal 3rd 428.] This bill
seems an impermissible violation of the prohibition against
double punishment in that this bill seeks to add two prior
conviction enhancements for the same crime. If a defendant is
convicted and sentenced to prison for identity theft and is
then charged and sentenced to a subsequent crime of identity
theft, he or she would be sentenced to an additional two years
for the prior identity theft offense and then an additional
year for being previously sent to prison on for the same prior
offense.
5)"Reason to Know" Standard : This bill defines a new crime
committed where a defendant, within a 12-month period,
acquires the personal identifying information of four or more
persons and the defendant "knows or has reason to know" was
taken or retained in violation of related identity theft
crimes. Arguably, the standard that a person "has reason to
know" that identifying information was taken or retained with
fraudulent intent is particularly minimal and vague. Any fact
could establish a "reason to know." Generally, the least
stringent level of criminal knowledge involves a situation
where the defendant "reasonably should have known" an
essential fact. The "should have known" standard is objective
- what a reasonable person would understand or know in those
circumstances. The "has reason to know" standard was taken
from the crime of acquiring four or more access cards. [Penal
Code Section 484e(b).] The objective standard of "known or
reasonably should have known" is more appropriate particularly
in identity theft crimes since criminal action is often not
obvious.
6)Requirements of Jurisdiction : The United States Constitution,
Amendment Six guarantees criminal defendants the right to be
tried by an impartial jury of the state and district wherein
the crime shall have been committed, which district shall have
been previously ascertained by law. California Constitution,
Article I, Section 16 has been construed as implicitly
reserving a similar, but not necessarily coextensive, vicinage
right. [ Williams vs. Florida (1970) 399 U.S. 78, 86; Duncan
vs. Louisiana (1968) 391 U.S. 145, 149.] This bill would
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allow jurisdiction of a criminal action for identity theft in
the county of residence of the person whose personal
identifying information was used without authorization. The
California Supreme Court recently addressed the issue of the
proper jurisdiction of sex or domestic violence cases that
occur in multiple jurisdictions involving the same victim and
the same defendant. In Price v. Superior Court (2001) 25
Cal. 4th 1046, the Supreme Court concluded that the Article I,
Section 16 of the California Constitution did not guarantee a
right to a jury drawn from the county in which the crime was
committed.
The Court recognized the power of the Legislature to designate
the place of trial of criminal offenses. However, the Court
further ruled that the county of trial must have a reasonable
relationship to the offense or crimes committed by the
defendant against the same defendant. The Court stated, "We
do not hold here that a crime may be tried anywhere. The
Legislature's power to designate the place for trial of a
criminal offense is limited by the requirement that there be a
reasonable relationship or nexus between the place designated
for trial and the commission of the offense." It is clear
that unless the personal identifying information was taken or
used in the victim's county of residence, there is no
reasonable relationship between the commission of identity
theft and the victim's county of residence. The negative
impact, economic and otherwise, of identity theft on the
victim is unconnected to the commission of the offense, which
is the theft or use of the information. Although the Court in
Price stated the Legislature's power to create jurisdiction,
allowing prosecution in the victim's county of residence in
cases of identity theft is unprecedented. No other statute
allows such jurisdiction because the prosecution must be
related to the commission of the crime.
7)Concerns of Forum Shopping : Concerns have been raised that if
this bill were to pass it would provide for jurisdiction of a
criminal action in identity theft cases in a third county, in
addition to the counties in which the information was taken or
used if they are different. This could give law enforcement a
choice of three different venues where the crime could be
prosecuted; it is argued that the choice of trial jurisdiction
would be in a county where they would most likely to obtain a
conviction. Should the Legislature provide yet another venue
for the trial of identity theft cases?
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8)State Sovereignty and Out of State Defendants : Penal Code
Section 777 provides "that every person is liable to
punishment by the laws of this State for a public offense
committed by him therein." In other words, California law may
only punish offenses committed within the state's borders.
This bill would give trial jurisdiction for identity theft in
any county in which the victim resides regardless of whether
or not the offense was committed outside California. In
addition to conflicting with the general jurisdictional
statute above, this bill raises state sovereignty issues in
that California would be able to prosecute a New York resident
for a crime committed entirely within the State of New York.
Previous versions of this bill, AB 1773 (Wayne) Chapter 908,
Statutes of 2002, and AB 543 (Bogh), of the 2003-04
Legislative Session, provided for jurisdiction in identity
theft cases in the victim's county of residence but limited
the application only to offenses committed within the state of
California. (AB 543 was never heard by this Committee and was
returned to the Chief Clerk of the Assembly.) This bill does
not have a similar restriction.
9)This Bill Will Expand Three Strikes : Because this bill
creates a new felony, a person may be sentenced to a term of
25-years-to-life for nothing more than a traffic offense if he
or she has qualifying priors, as specified. Sentencing
language that specifies, as this bill does, imprisonment in
county jail or - in the alternative - state prison is known as
an alternate felony/misdemeanor, meaning the defendant may be
charged with either a misdemeanor or a felony. Existing law
differentiates between the severities of crimes. Thus, some
felony offenses, such as rape or murder, have higher penalties
than others do, such as theft. Under "Three Strikes," any
felony conviction, not just a serious or violent felony
conviction, following a violent or serious prior results in a
sentence of twice the normal length. With any two violent or
serious felony priors, a new conviction for any felony -
including writing bad checks, petty theft with a prior, etc. -
results in a life sentence. Thus, the Three Strikes Law makes
no distinction in severity between different felonies. This
explains why creating a new felony involves very weighty and
severe consequences. Where a Three Strikes defendant is
convicted of two counts of theft not committed on one occasion
or arising from the same facts, he or she must receive two
consecutive terms of 25-years-to-life. For many defendants,
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such a sentence means that they will never be released from
prison.
Although it may be argued that a defendant may always file a
motion to dismiss a strike under People vs. Romero , filing
such a motion hardly means that a defendant will be successful
especially when the Legislature sees fit to create a new
felony. Simply passing the responsibility to the courts is
irresponsible. People vs. Romero is rooted in Penal Code
Section 1385, which allows a judge to "strike a strike, in the
interest of justice", meaning dismiss one of the prior strikes
for purposes of sentencing under the Three-Strikes Law.
Courts will look at a number of factors to decide if dismissal
for purposes of sentencing is appropriate, including if the
defendant has lived a crime-free or relatively crime-free life
between the second and third offense. [ People vs. Carmony
(2004) 33 Cal.4th 367.] A crime-free life usually includes no
misdemeanors. A defendant who has a peppered record of
misdemeanors between strikes will likely be unsuccessful. A
denial of an invitation to dismiss under Penal Code Section
1385 is reviewed by appellate courts pursuant to an abuse of
discretion standard, which is extremely difficult to show.
[ People vs. Superior Court (Alvarez) (1997) 14 Cal.4th 9680.]
Therefore, it should provide little comfort to the Legislature
that a defendant may make this very often, unsuccessful motion
to avoid being sentenced to 25-years-to-life on a non-violent
third strike.
10)Argument in Support : The Los Angeles County District
Attorney's Office states, "This bill strengthens our identity
theft statute (Penal Code Section 530.5) in a number of
significant ways by making possession of personal identifying
information a felony if the person possesses it with the
intent to defraud; making the possession of personal
identifying information a felony if the person has previously
been convicted of specified identity theft offenses; adding a
subsection making the sale, transfer, or conveyance of
personal information with the intent to defraud a form of
grand theft; adding a Subsection (f) providing that if the
person possesses the personal information of four or more
persons over a 12-month period, the crime can me changed as a
felony as well; and adding a subsection creating a two-year
enhancement for any person previously convicted of identity
theft.
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11)Argument in Opposition : California Attorneys for Criminal
Justice states, "This bill unnecessarily increases the
penalties for identity theft. Current law imposes severe
penalties for these crimes and there is no evidence that
current laws are not being prosecuted or not resulting in
convictions."
12)Related Legislation :
a) AB 2333 (Parra) creates an alternate felony/misdemeanor,
punishable by 16 months, 2 or 3 years in the state prison
or by up to one year in the county jail, for any person who
acquires, transfers or retains possession of the personal
identifying information of 10 or more persons with the
intent to defraud. AB 2333 is pending hearing in the
Assembly Committee on Appropriations.
b) AB 2919 (Benoit) creates, among other things, a two-year
penalty enhancement for every person previously convicted
of a felony identity theft, conspiracy to commit identity
theft, or other crimes involving theft of personal
information, as specified, and convicted of a present crime
of identity theft. The enhancement shall be imposed in
addition to any other enhancement, as specified, even if
the prior felony conviction did not result in a term of
imprisonment. AB 2919 is pending hearing in this
Committee.
c) AB 424 (Calderon), Chapter 10, Statutes of 2006,
provides that for the purposes of identity theft a "person"
is defined as a natural person, firm, association,
organization, partnership, business trust, company,
corporation, limited liability company, or public entity.
d) AB 1566 (Calderon), Chapter 432, Statutes of 2005,
provides that every person who, with the intent to defraud,
acquires, transfers, or retains possession of the personal
identifying information, as defined, of another person who
is deployed to a location outside California is guilty of a
public offense; and upon conviction therefore, shall be
punished by imprisonment in a county jail not to exceed one
year; a fine not to exceed $2,000; or by both that
imprisonment and fine.
13)Prior Legislation : AB 1773 (Committee on Banking and
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Finance), Chapter 137, Statutes of 2003, in its original form
authorized jurisdiction of a criminal action for the
unauthorized use of personal identifying information in the
county of residence of the person whose personal identifying
information is used without authorization. AB 1773 was
amended before passing the Assembly to allow only search
warrants to be issued in the victim's county of residence.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
California Law Enforcement Association of Records Supervisors
California Peace Officers Association
California State Sheriffs Association
City of Glendale
Glendale Police Officers Association
Los Angeles County District Attorneys Office
Los Angeles County Sheriff's Department
Los Angeles Police Protective League
Police Officers Research Association of California
Riverside Sheriffs' Association
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744