BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 1 8 2 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 (More) AB 1829 (Cook) PageB 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, (More) AB 1829 (Cook) PageC 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, (More) AB 1829 (Cook) PageD 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 (More) AB 1829 (Cook) PageE 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). (More) AB 1829 (Cook) PageF 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 (More) AB 1829 (Cook) PageG 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. (More) 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 (More) AB 1829 (Cook) PageI 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? AB 1829 (Cook) PageJ 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.) AB 1829 (Cook) PageK 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 AB 1829 (Cook) PageL 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 AB 1829 (Cook) PageM 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 AB 1829 (Cook) PageN 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).) *************** AB 1829 (Cook) PageO