BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 1829 (Cook)                                             9
          As Introduced February 11, 2010 
          Hearing date:  June 15, 2010
          Military & Veterans Code; Penal Code
          JM:dl

                   FRAUDULENT USE OF MILITARY DECORATIONS AND AWARDS  

                                       HISTORY

          Source:Vietnam Veterans of America, California State Council

          Prior Legislation: AB 282 (Cook) - Ch. 360, Stats. 2007
                       AB 787 (DeVore) - Ch. 457, Stats. 2006

          Support:  American Legion, Department of California; AMVETS  
                    (American Veterans), Department of California; Crime  
                    Victims Action Alliance

          Opposition:California Attorneys for Criminal Justice

          Assembly Floor Vote:  Ayes 74 - Noes 0


                                       KEY ISSUE

           SHOULD THE FALSE REPRESENTATION OF HAVING BEEN AWARDED ANY  
          MILITARY DECORATION BE A MISDEMEANOR IN THE PENAL CODE INSTEAD  
          OF AN INFRACTION IN THE MILITARY AND VETERANS CODE, AS  
          SPECIFIED?

                                          
                                       PURPOSE




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          The purposes of this bill are to 1) elevate to a misdemeanor an  
          existing infraction that is committed where a person  
          fraudulently claims to have been awarded a military decoration,  
          and 2) place this crime, now defined in the Military and  
          Veterans Code, in the Penal Code within a section defining a  
          related crime. 


           Existing law  provides that any person who, with intent to  
          defraud, falsely claims to have been awarded any military  
          decoration is guilty of an infraction.  (Mil. & Vet. Code   
          648.1, subd. (a).)    A "military decoration" is any decoration  
          or medal from the Armed Forces of the United States, the  
          California National Guard, State Military Reserve or Naval  
          Militia, or any service medals or badges awarded to the members  
          of such forces, or the ribbon, button, or rosette of any such  
          item, or any colorable imitation of such item.  (Mil. & Vet.  
          Code  648.1, subd. (b).)  


           Existing law  provides that any person who falsely represents  
          himself or herself to be a veteran or ex-serviceman of any war  
          in which the United States was engaged, in connection with the  
          soliciting of aid or the sale or attempted sale of any property,  
          is guilty of a misdemeanor.  Solicitations of under $10 are  
          excluded from this crime.  (Pen. Code  532b, subd. (a).)

           Existing law  states that any person who, with intent to defraud,  
          falsely claims, or presents himself or herself, to be a veteran  
          or member of the Armed Forces of the United States is guilty of  
          a misdemeanor.  (Pen. Code  532b, subd. (b).)

           Existing law  provides that any person who willfully wears or  
          uses the badge, button, rosette, or other recognized  insignia  
          of a specified veterans' organization, is guilty of a  
          misdemeanor, unless the wearer need not obtain the permission of  
          the organization.  For a first conviction, this crime is  
          punishable by imprisonment not to exceed 30 days in a county  
          jail or a fine not to exceed $500.  Upon a second conviction,  




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          the defendant is punishable by imprisonment in a county jail for  
          up to six months; a fine of up to $1,000, or both.  (Mil and  
          Vet. Code  1820.)

           This bill  defines the following infraction, currently set out in  
          Military and Veterans Code Section 648.1 as a misdemeanor:  Any  
          person who, orally or in wiring, or by wearing any military  
          decoration, falsely represents that he or she has been awarded  
          any military decoration, with intent to defraud, is guilty of a  
          [public offense]."

           This bill  incorporates into Penal Code Section 532b the  
          following definition of "military decoration" that currently  
          appears in Military and Veterans Code Section 648.1:  Any  
          decoration or medal from the Armed Forces of the United States,  
          California National Guard, State Military Reserve, or Naval  
          Militia, or any service medals or badges awarded to the members  
          of those forces, or the ribbon, button, or rosette of that  
          badge, decoration, or medal, or any colorable imitation of that  
          item. 

           This bill  repeals Military and Veterans Code Section 648.1 and  
          places the provisions of that section in an existing section of  
          the Penal Code (Pen. Code  532b) that concerns fraudulent  
          claims of military service in connection with soliciting aid or  
          selling property.
          

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  
          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  




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          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house,  
               (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents,   California "spends more on corrections  
               than most countries in the world," but the state  
               "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  
               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  




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               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  
               adequate medical and mental health care.<1>

          The court stayed implementation of its January 12, 2010, ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  That appeal, and the final outcome of this litigation,  
          is not anticipated until later this year or 2011.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               The crime of fraudulently misrepresenting one's  
               military record to defraud others is utterly  
               reprehensible.  It pleased me to put AB 282 on the  
               books in 2007, but punishing this type of crime by  
               issuing an infraction doesn't go far enough.  This  
               bill is necessary to protect the dignity and honor of  
               the men and women who have served honorably in the  
               ----------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




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               United States Armed Forces.

               The penalty under current law for fraudulently wearing  
               or claiming receipt of a military decoration is too  
               lenient.  As it stands today, such crimes are  
               considered an infraction within the Military and  
               Veterans Code.  The intent of this legislation is to  
               strengthen existing law by making this crime a  
               misdemeanor.

               This bill would provide that it is a misdemeanor for a  
               person to, orally, in writing, or by wearing, as  
               defined, falsely represent himself or herself to have  
               been awarded any military decoration.  This bill would  
               exempt face-to-face solicitations involving less than  
               $10.

          2.  Intent to Defraud is an Element of the Crime Considered by  
            This Bill  

          As defined by this bill, the crime of falsely claiming to have  
          been awarded a military decoration or falsely wearing military  
          decorations includes an element that the defendant intended to  
          defraud.  As defined in standard California jury instructions,  
          to defraud generally means "to deceive another person [so as to]  
          either to cause a loss of money, goods, or services, or  
          something else of value, or to cause damage to, a legal,  
          financial, or property right."  (CALCRIM 1900.)

          It thus appears that a person is not guilty of fraudulently  
          claiming to be a decorated veteran or fraudulently wearing  
          military decorations if he or she merely acts out of  
          self-aggrandizement.  Further, this bill excludes from its reach  
          circumstances where a person essentially panhandles (for amounts  
          of less than $10) by claiming to be a decorated veteran.


          3.  Punishment and Proportionality Issues  

          Comparison between the Crime Considered by this Bill and the  




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          Existing Misdemeanor of Fraudulently Claiming Veteran Status
          
          As noted above, this bill essentially takes an existing  
          infraction that is defined in the Military and Veterans Code,  
          raises the crime to a misdemeanor and moves the offense to a  
          Penal Code Section 532b, which defines two similar misdemeanors.  
           One crime defined by Penal Code Section 532b is committed where  
          a person fraudulently claims to be a war veteran in connection  
          with solicitation of aid or in the sale of any property.  The  
          other is committed where a person fraudulently pretends to be a  
          veteran or an active duty military member, regardless of any  
          claim of service during war.
































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          Arguably, the act of fraudulently claiming to be a decorated  
          veteran is more egregious than simply claiming to be veteran,  
          per se.  It could be argued that existing law arguably violates  
          the principle of proportionately, in that the law more severely  
          punishes the less egregious crime.  Further, existing law  
          includes a misdemeanor, with minimum jail terms, for falsely  
          wearing an insignia of a veterans' organization.  That is also  
          arguably a less egregious act than falsely claiming to have  
          earned a military decoration.  (Mil. & Vet. Code  1820.)

          Double Punishment and Conviction Rules
          
          Where a defendant falsely claimed to be a veteran and to have  
          been awarded a military decoration in connection with a single  
          transaction, such as solicitation for a donation of money, the  
          defendant could perhaps be convicted of two crimes.  That is,  
          claiming to be a veteran and claiming to have been awarded a  
          military decoration or award can be said to be separate acts.    
          However, it appears that the defendant could only receive a  
          single punishment.  Arguably, the defendant had a single purpose  
          - to obtain money or other benefit by claiming status as a  
          veteran.  A defendant who commits more than one crime in a  
          single transaction and for a single purpose can only receive one  
          punishment.  (Pen. Code  654)

          Also, it can be argued that where a defendant (who is not a  
          veteran) fraudulently claims to have been a decorated veteran,  
          the offense of fraudulently claiming to be veteran would  
          essentially merge with the offense of claiming to be a decorated  
          veteran as a lesser included offense.  A lesser included offense  
          is an offense that is necessarily committed when one commits the  
          greater offense.  That is, the defendant could claim that the  
          offenses of claiming to be a veteran and claiming to be a  
          decorated veteran must be considered a single crime, resulting  
          in only a single conviction.  (People v. Pearson (1986) 42  
          Cal.3d 351, 355.)

          However, it does appear that a person who is in fact a veteran  
          could be convicted of fraudulently claiming to have been awarded  




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          a military decoration.  Double conviction and punishment issues  
          would not apply in such a case.

          Concerns that Veterans may be particularly likely to be  
          Prosecuted for Fraudulently Claiming to have earned a Medal or  
          Award
          
          A veteran who falsely claims to have  been awarded a military  
          decoration or award could apparently be prosecuted under the  
          existing Military and Veterans Code infraction and the  
          misdemeanor considered by this bill.

          The California Attorneys for Criminal Justice have argued that  
          many veterans - who may be homeless, mentally ill or both - may  
          claim to have earned medals as part of a solicitation for money.  
           Similar concerns, but about claims of veteran status per se,  
          were raised when this Committee heard AB 787 (DeVore) in 2007.   
          AB 787 was amended to exempt cases where the person claiming to  
          be a veteran status solicited no more than $10 in a face-to-face  
          encounter.

          As to this bill, a person who actually did previously serve in  
          the military could be subject to prosecution if he or she  
          falsely claims to have earned a medal or decoration. It could be  
          argued that this is a less egregious act than the claim by a  
          person who never served in the military at all claims to have  
          earned a medal.  As noted by CACJ, and as noted by many in  
          connection with bills that would allow courts to provide  
          treatment for mentally ill veterans charged with crimes, many  
          veterans could be homeless and mentally ill.  Perhaps the bill  
          could be amended to provided that where a veteran falsely claims  
          to have earned a military award of decoration, the offense could  
          be treated as an infraction or misdemeanor.

          SHOULD THE EXISTING MILITARY AND VETERANS CODE INFRACTION OF  
          FRAUDULENTLY CLAIMING TO HAVE RECEIVED A MILITARY DECORATION BE  
          MADE A MISDEMEANOR AND PLACED IN  A SECTION OF THE PENAL CODE  
          THAT DEFINES A MISDEMEANOR THAT IS COMMITTED WHERE A PERSON  
          FRAUDULENTLY CLAIMS TO BE VETERAN, PER SE?













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          WHERE THE DEFENDANT SUBJECT TO PROSECUTION FOR FRAUDULENTLY  
          CLAIMING TO HAVE BEEN AWARDED A MILITARY DECORATION IS A  
          MILITARY VETERAN, SHOULD THE OFFENSE BE DEFINED AS AN ALTERNATE  
          MISDEMEANOR-INFRACTION?

          4. Prior Related Legislation  

          AB 282 (Cook), Chapter 360,  Statutes of 2007, created an  
          infraction for a person to falsely represent himself or herself,  
          verbally or in writing, to have been awarded any decoration or  
          medal from the Armed Forces of the United States, the California  
          National Guard, State Military Reserve, or Navel Militia; any  
          service medals or badges awarded to the members of such forces;  
          the ribbon, button, or rosette of any such badge, decoration or  
          medal; or, any colorable imitation of such item with the intent  
          to defraud.

          AB 787 (DeVore), Chapter 457, Statutes of 2006, provided that  
          any person who falsely claims,  represents or presents himself  
          or herself to be a veteran or member of the armed forces of the  
          United States with the intent to defraud, is guilty of a  
          misdemeanor.  Face-to-face solicitations involving less than $10  
          are exempt from prosecution.

          5.  Existing Federal Laws on False Claims of Military Service  

          Federal law includes numerous crimes that are committed by a  
          person who falsely claims to be a veteran.  Prominent offenses  
          are set out below:

           Existing federal law  mandates any person who, without authority,  
          wears the uniform or distinctive part thereof, or similar  
          apparel, of any of the armed forces of the United States or the  
          Public Health Service shall be fined or imprisoned for up to six  
          months.  (18 USC  702.)

           Existing federal law  provides that any person who, with intent  
          to deceive, wears any military or official decoration of a  
          nation with which the United States is at peace, shall be fined  
          or imprisoned for up to six months.  (18 USC  703.)












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           Existing federal law  provides that any person who knowingly  
          wears, manufactures, or sells any military decoration or medal  
          authorized by Congress, any service medals or badges the ribbon,  
          button, or rosette of any such badge, decoration or medal; or  
          any colorable imitation thereof, except when authorized, shall  
          be fined, imprisoned not more than six months, or both.  If the  
          decoration or medal is a Congressional Medal of Honor, the  
          offender can be imprisoned not more than one year, fined, or  
          both.  (18 USC  704(a) and 704(b)(1).)

           Existing federal law  provides that any person who knowingly  
          engages in commerce, as specified, involving a badge, medal,  
          emblem or other insignia of any veterans' organization  
          incorporated by enactment of Congress or of any organization  
          formally recognized by any such veterans' organization as an  
          auxiliary of such veterans' organization shall be fined under  
          this title, imprisoned not more than six months, or both.  This  
          crime is also committed where the badge or insignia, as  
          specified, of a veterans' organization is reproduced on any  
          poster or publication, or where such matter is circulated,  
          except when authorized by the organization.  (18 USC  705.)

          6.  Existing California Laws on Falsely Claiming to be a Peace  
            Officer or Fire Fighter or Official  

          This bill concerns false claims of military service.  California  
          law includes crimes involving false claims that a person is a  
          peace officer, fire fighter or fire official.   Major statutes  
          are described below:

           Existing law  states any person who unlawfully wears, exhibits,  
          or uses the uniform, insignia, emblem, device, label,  
          certificate, card or writing of an officer or member of a fire  
          department with fraudulent intent is guilty of a misdemeanor.   
          (Pen Code  538e, subd. (a).)

           Existing law  provides that any person who willfully wears,  
          exhibits, or uses the badge of a fire department or the Office  
          of the State Fire Marshal with intent to fraudulently  












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          impersonate an officer or member of a fire department or a  
          deputy state fire marshal, of fraudulently inducing the belief  
          that he or she is an officer or member of a fire department or a  
          deputy state fire marshal, is guilty of a misdemeanor,  
          punishable by up to one year in the county jail; by a fine not  
          to exceed $2,000; or by both.  (Pen. Code 538e, subd. (b)(1).)

           Existing law  affirms that any person who willfully wears or uses  
          any badge that falsely purports to be an officer or member of a  
          fire department or a deputy state fire marshal, or which  
          resembles the authorized badge so as to deceive an ordinary  
          reasonably person into believing that it is authorized for the  
          use of one who by law is given the authority of an officer or  
          member of a fire department or a deputy state fire marshal, for  
          the purpose of fraudulently impersonating an officer or member  
          of a fire department or a deputy state fire marshal, or of  
          fraudulently inducing the belief that he or she is an officer or  
          member of a fire department or a deputy state fire marshal, is  
          guilty of a misdemeanor, punishable by up to one year in the  
          county jail; by a fine not to exceed $2,000; or by both.  (Pen.  
          Code  538e, subd. (b)(2).)
                                                                         
           Existing law  provides that any person who willfully wears,  
          exhibits, or uses; who willfully makes, sells, loans, gives; or  
          transfers to another any badge, insignia, emblem, device, or any  
          label, certificate, card, or writing, which falsely purports to  
          be authorized for the use of one who by law is given the  
          authority of an officer or member of a fire department or a  
          deputy state fire marshal, or which so resembles the authorized  
          badge, insignia, emblem, device, label, certificate, card, or  
          writing of an officer or member of a fire department or a deputy  
          state fire marshal as would deceive an ordinary reasonable  
          person into believing that it is authorized for use by an  
          officer or member of a fire department or a deputy state fire  
          marshal, is guilty of a misdemeanor, except when any person who  
          makes or sells any badge under the circumstances described in  
          this subdivision is guilty of a misdemeanor, punishable by a  
          fine not to exceed $15,000.  (Pen. Code  538e, subd. (c).)
           
          Existing law  provides that any person who, for the purpose of  












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          selling, leasing or otherwise disposing of merchandise, supplies  
          or equipment used in fire prevention or suppression, falsely  
          represents, in any manner whatsoever, to any other person that  
          he or she is a fire marshal, fire inspector or member of a fire  
          department; or that he or she has the approval, endorsement or  
          authorization of any fire marshal, fire inspector or fire  
          department, or member thereof, is guilty of a misdemeanor.   
          (Pen. Code  538e, subd. (d).) 

           Existing law  expresses that any person who unlawfully wears,  
          exhibits, or uses the uniform, emblem, insignia, or card of a  
          peace officer with fraudulent intent is guilty of a misdemeanor.  
           (Pen. Code  538d, subd. (a).)

           Existing law  punishes any person who wears, exhibits, or uses  
          the badge of a peace officer with fraudulent intent is guilty of  
          a misdemeanor, punishable by up to one year in the county jail;  
          by a fine not to exceed $2,000; or by both.  (Pen. Code  538d,  
          subd. (b)(1).)

           Existing law  provides that any person who wears, exhibits, or  
          uses any badge which falsely purports to be that of a peace  
          officer is guilty of a misdemeanor, punishable by up to one year  
          in the county jail; by a fine not to exceed $2,000; or by both.   
          (Pen. Code  538d, subd. (b)(2).)

           Existing law  states that the willful manufacture, sale, loan, or  
          transfer of any badge, emblem, insignia, or card falsely  
          purporting to be that of a peace officer is guilty of a  
          misdemeanor, punishable by up to six months in the county jail;  
          by a fine not to exceed $15,000; or by both.  (Pen. Code  538d,  
          subd. (c).)

          7.  Existing California Statutes on False Personation, Identity  
            Theft and Fraud  

          This bill considers specific forms of fraud involving a person's  
          false claims of military service or a person's false claim of  
          receiving a military decoration.  California law includes crimes  
          that are committed where the perpetrator assumes the identity of  












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          another person.  These crimes generally involve subjecting the  
          victim to some specified harm or loss.  California law also  
          provides that obtaining goods or service through fraud  
          constitutes is guilty of theft.  The major statutes are as  
          follows:

           Existing law  mandates that any person who falsely personates  
          another, in either his or her private or official capacity, and  
          in such assumed character receives any money or property knowing  
          that it is intended to be delivered to the individual so  
          personated, with intent to convert the same to his or her own  
          use, that of another person, or to deprive the true owner  
          thereof, punishable in the same manner and to the same extent as  
          for larceny of the money or property so received.  (Pen. Code   
          530.)

           Existing law  penalizes any person who willfully obtains personal  
          identifying information, as defined, 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, punishable by up  
          to one year in a county jail and/or a fine of up to $1,000, or  
          imprisonment in the state prison and/or a fine of up to $10,000.  
           (Pen. Code  530.5, subd. (a).)

           Existing law  punishes any person who knowingly and designedly,  
          by any false or fraudulent representation or pretense, defrauds  
          any other person of money, labor, or property, whether real or  
          personal, is punishable in the same manner and to the same  
          extent as for larceny of the money or property so obtained.   
          (Pen. Code  532, subd. (a).)



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