BILL ANALYSIS
AB 130
Page 1
Date of Hearing: March 17, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 130 (Jeffries) - As Introduced: January 20, 2009
SUMMARY : Increases the punishment for commission of specified
identity theft crimes for persons with prior identity
theft-related crimes. Specifically, this bill :
1)Increases the penalty for unlawful acquisition or use of
personal identifying information by a person with a prior
identity theft conviction from this section from one year in
the county jail or 16 months, 2 or 3 years in state prison to
one year in the county jail or imprisonment in the state
prison for 2, 3, or 4 years.
2)Increases the penalty for acquisition or possession of
personal information of another by a person with a prior
identity theft conviction from this section from one year in
the county jail or 16 months, 2 or 3 years in state prison to
one year in the county jail or imprisonment in the state
prison for 2, 3, or 4 years.
3)Increases the penalty for acquisition or possession of
personal information of 10 or more persons by a person with a
prior identity theft conviction from this section from one
year in the county jail or 16 months, 2 or 3 years in state
prison to one year in the county jail or imprisonment in the
state prison for 2, 3, or 4 years.
4)Increases the penalty for selling, transferring, or conveying
the personal identifying information of another person, with
the intent to defraud by a person with a prior identity theft
conviction from this section, from one year in the county jail
or 16 months, 2 or 3 years in state prison to one year in the
county jail or imprisonment in the state prison for 2, 3, or 4
years.
5)Increases the penalty for being a person with actual knowledge
that the personal identifying information of a person will be
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used to commit identity theft, sells, transfers, or conveys
that same personal identifying information by a person with a
prior identity theft conviction from this section from
imprisonment in the state prison for 16 months, 2 or 3 years
to one year in the county jail or imprisonment in the state
prison for 2, 3, or 4 years.
6)Increases the penalty for mail theft by a person with a prior
identity theft conviction from this section from a misdemeanor
with a maximum penalty of one year in the county jail to an
alternate felony/misdemeanor with a penalty of one year in the
county jail or imprisonment in the state prison for 2, 3, or 4
years.
EXISTING LAW :
1)States every person who willfully obtains personal identifying
information of another person and uses that information for
any unlawful purpose, including to obtain, or attempt to
obtain, credit, goods, services, real property, or medical
information without the consent of that person, is guilty of a
public offense, and upon conviction therefore, shall be
punished by a fine, by imprisonment in a county jail not to
exceed one year, or by both a fine and imprisonment, or by
imprisonment in the state prison. (Penal Code Section 530.5.)
2)Provides that in any case in which a person willfully obtains
personal identifying information of another person, uses that
information to commit a crime in addition to a violation
identity theft, and is convicted of that crime, the court
records shall reflect that the person whose identity was
falsely used to commit the crime did not commit the crime.
(Penal Code Section 530.5.)
3)States a person who, with the intent to defraud, acquires or
retains possession of the personal identifying information of
another person is guilty of a public offense, and upon
conviction therefore, shall be punished by a fine, by
imprisonment in a county jail not to exceed one year, or by
both a fine and imprisonment. (Penal Code Section 530.5.)
4)Provides that any person who, with the intent to defraud,
acquires or retains possession of the personal identifying
information of another person, and who has previously been
convicted of a violation of this section, upon conviction
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therefore shall be punished by a fine, by imprisonment in a
county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment in the state prison. (Penal
Code Section 530.5.)
5)States every person who, with the intent to defraud, acquires
or retains possession of the personal identifying information
of 10 or more other persons is guilty of a public offense, and
upon conviction therefore, shall be punished by a fine, by
imprisonment in a county jail not to exceed one year, or by
both a fine and imprisonment, or by imprisonment in the state
prison. (Penal Code Section 530.5.)
6)Provides that a person who, with the intent to defraud, sells,
transfers, or conveys the personal identifying information of
another person is guilty of a public offense, and upon
conviction therefore, shall be punished by a fine, by
imprisonment in a county jail not to exceed one year; by both
a fine and imprisonment; or by imprisonment in the state
prison. (Penal Code Section 530.5.)
7)States that a person who, with actual knowledge that the
personal identifying information of a specific person will be
used to commit identity theft, sells, transfers, or conveys
that same personal identifying information is guilty of a
public offense, and upon conviction therefore, shall be
punished by a fine; by imprisonment in the state prison; or by
both a fine and imprisonment. (Penal Code Section 530.5.)
8)Provides that every person who commits mail theft is guilty of
a public offense, and upon conviction therefor shall be
punished by a fine, by imprisonment in a county jail not to
exceed one year, or by both a fine and imprisonment. (Penal
Code Section 530.5.)
9)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).]
10)Provides it shall be unlawful for any person, by means of a
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Web page, electronic mail message, or otherwise through use of
the Internet, to solicit, request, or take any action to
induce another person to provide identifying information by
representing it to be a business without the authority or
approval of the business. (Business and Professions Code
Section 22948.2.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Identity theft
is a growing and serious problem throughout California. As of
2005, the Department of Justice noted that there were 45,175
reported victims of identity theft. California ranks third in
the nation with 125 victims per 100,000 population. According
to a recent study, nearly half of the 84,000 children in
California's foster care system may have been victims of
identity theft. Additionally, more than 1 of every 20
children have also been victims of identity theft,
accumulating, on average, a wrongly assigned debt of more than
$12,000. Current penalties of 16 months, 2 years and 3 years
for an identity theft conviction are too lenient. These
sentences allow offenders to quickly re-enter society and
commit these same crimes again. With enhanced penalties,
would be identity thieves would be further discouraged and
convicted identity thieves would serve the appropriate amount
of prison sentence in accordance with the severity of their
actions. During these times of severe economic crisis, the
last thing a family or a foster child needs is to have their
credit further impaired by criminals."
2)Judges Currently Consider Repeat Offenses in Crafting
Appropriate Sentences for Identity Theft : This bill increases
the potential maximum incarceration period for persons
convicted of various identity theft offenses when a defendant
has a prior identity theft-related conviction from this
section. Currently, an offender may be punished according to
a graduated sentencing scheme for convictions of identity
theft. A judge may choose to sentence a defendant to a
misdemeanor or a felony. Punishments range from a simple fine
to a maximum of three years in state prison for most offenses.
This bill increases the maximum incarceration period for
offenders with prior related convictions to a four-year prison
term. Under the current sentencing scheme for identity theft,
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if a defendant is convicted of a felony, the judge has the
discretion to craft the appropriate sentence depending on the
circumstances of the case. A judge will consider aggravating
and mitigating factors on crafting the appropriate sentence,
which can range from probation and a fine to imprisonment in
state prison. Currently, a judge will consider the
defendant's prior criminal history and whether the defendant
has prior identity theft offenses. Upon a examination of the
defendant's history, a judge currently has the discretion to
sentence a defendant to the aggravated term of three years in
state prison if the defendant has had prior identity theft (or
any other) criminal offenses.
3)Increases the Penalty for a Mail Theft with a Prior Conviction
of Identity Theft from a Misdemeanor to an Alternate Felony
Misdemeanor : This bill increases the penalty for mail theft
with a prior identity theft conviction from a misdemeanor with
a maximum penalty of one year in the county jail to an
alternate felony/misdemeanor with a penalty of one year in the
county jail or two, three, or four years in state prison.
This bill changes an offense which is currently a misdemeanor
into an alternate felony/misdemeanor carrying a prison
sentence higher than the default prison sentence of 16 months,
2 or 3 years in state prison.
4)Prison Overcrowding and a Court-Ordered Population Cap : When
the offense is currently punishable by a substantial prison
term, any proposed increase in that prison term causes concern
for additional prison overcrowding. As California's prison
crisis worsens, close attention should be paid to legislation
increasing prison overcrowding. The California Policy
Research Center (CPRC) recently issued a report on the status
of California's prisons. The report stated, "California has
the largest prison population of any state in the nation, with
more than 171,000 inmates in 33 adult prisons, and the state's
annual correctional spending, including jails and probation,
amounts to $8.92 billion. Despite the high cost of
corrections, fewer California prisoners participate in
relevant treatment programs than comparable states, and its
inmate-to-officer ratio is considerably higher. While the
nation's prisons average one correctional officer to every 4.5
inmates, the average California officer is responsible for 6.5
inmates. Although officer salaries are higher than average,
their ranks are spread dangerously thin and there is a severe
vacancy rate." [Petersilia, "Understanding California
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Corrections," California Policy Research Center, (May 2006).]
California's prison population will likely exceed 180,000 by
2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, 30 years of 'tough on crime' politics has
not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentives for offenders
to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims." [Little
Hoover Commission Report, "Solving California's Corrections
Crisis: Time is Running Out" pg. 1, 2 (2007).]
On February 9, 2009, a United States District Court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges state "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
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conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population.
In light of California's escalating fiscal concerns and prison
overcrowding, should the Legislature increase prison sentences
for identity theft when judges already have the discretion to
sentence defendants with prior criminal histories to longer
terms?
5)Argument in Support : The Riverside County District Attorney
states, "I am writing as the sponsor of Assembly Bill 130,
which will increase penalties on repeat identity theft
offenders. Identity theft is a fast growing criminal
enterprise, and is on the rise during these poor economic
times. According to the Federal Trade Commission, in 2007
there were 8.1 million U.S. residents who were victims of
identity theft and of that, nearly 44,000 were California
residents. That represents 3.6% of adults, including more
than a million Californians. The total cost of identity theft
in 2007 2as $45 billion. The tremendous level of financial
and emotional stress for those who "lose" their identity can
be time consuming and overwhelming. The consequences for
those who literally destroy the identities of innocent victims
for their own personal gain, should be significant. AB 130
will increase penalties on repeat identity thieves who have a
prior identity theft conviction. Current penalties for
identity thefts are imprisonment times of 16 months, 2 years
or 3 years depending on the offense. This bill would increase
those penalties for repeat identity thieves to 2, 3, and 4
years imprisonment respectively."
6)Argument in Opposition : Taxpayers for Improving Public Safety
state, "On behalf of TiPS, I write in opposition to AB 130, by
Assemblymember Jeffries. As you know, existing law establishes
various offenses in connection with the unlawful acquisition
or use of personal identifying information; and some of these
offenses are punishable only as misdemeanors. This bill would
provide that a 2nd or subsequent commission of any of these
offenses would be punishable by a fine, by imprisonment in a
county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment in the state prison for 2, 3,
or 4 years, thereby increasing penalties and adversely
impacting prison overcrowding.
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"This proposed legislation is another example of seeking
sentence enhancements without first determining if it will be
effective. We all must be mindful of the impending court order
setting a cap on inmate population in California prisons.
Prison housing is a finite and valuable resource which must be
used to best effect. The use of prison beds should be limited
to housing those individuals who represent a clear and present
danger to the community. Although white collar crime can never
be justified, it should be clear to all individuals that such
individuals are more susceptible to rehabilitation than those
individuals who are habituated to drugs, alcohol or are
involved in violent anti-social crime. The latter group of
criminals should be using prison space, not the former.
"TiPS is a non-partisan consortium of California taxpayers,
business interests, and persons within the prison reform
community who seek to improve public safety through meaningful
and cost-effective measures which best utilize taxpayer
dollars. TiPS believes that the promotion of prevention,
intervention, rehabilitation, and opportunity ought to always
be the first consideration in determining the best public
safety policy for California. For the aforementioned reasons
and more, TiPS opposes AB 130 and asks for your opposition as
well."
7)Prior Legislation :
a) AB 946 (Wyland), of the 2005-06 Legislative Session,
would have increased the minimum fines for identity theft.
AB 946 failed in this Committee.
b) AB 1581 (Garcia), of the 2005-06 Legislative Session,
would have created a new felony/misdemeanor, punishable by
fine or imprisonment, for identity theft involving attempts
to transfer or acquire the identities of more than 100
people. AB 1581 was held in the Assembly Appropriations
Committee.
c) SB 839 (Poochigian), of the 2005-06 Legislative Session,
increased penalties for person convicted of identity theft.
SB 839 failed passage in the Senate Public Safety
Committee.
REGISTERED SUPPORT / OPPOSITION :
AB 130
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Support
California Bankers Association
Riverside County District Attorney's Office
Opposition
Friends Committee on Legislation of California
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744