BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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2
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SB 226 (Alquist)
As Amended April 13, 2009
Hearing date: April 21, 2009
Penal Code
JM:br
IDENTITY THEFT VENUE :
OFFENSE COMMITTED IN MULTIPLE COUNTIES
HISTORY
Source: San Francisco County District Attorney
Prior Legislation: SB 1773 (Wayne) - Ch. 908, Stats. 2002
AB 2886 (Frommer) - Ch. 522, Stats. 2006
SB 612 (Simitian) Ch. 47, Stats. 2008
Support: Consumers Union; California District Attorneys
Association; Peace Officers Research Association of
California; Crime Victims United of California;
Consumer Federation of California
Opposition:None known
KEY ISSUE
SHOULD THE TRIAL OF MULTIPLE COUNTS OF IDENTITY THEFT COMMITTED IN
MORE THAN ONE COUNTY BE CONSOLIDATED FOR PROSECUTION IN A SINGLE
COUNTY IF THE DEFENDANT OR DEFENDANTS ARE THE SAME AND THE CRIMES
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ARE PART OF A SCHEME OR INVOLVE SUBSTANTIALLY SIMILAR ACTS, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to provide that where the same
defendant or defendants commit identity theft crimes in more
than one county, and the crimes are part of a scheme or involve
substantially similar acts, the charges can be tried in a single
county.
Existing law provides that any person who falsely personates
another is guilty of an alternate felony-misdemeanor. False
personation generally involves subjecting the person whose
identity was assumed to prosecution, suit, or a debt. (Pen.
Code 529.)
Existing law provides that it is an alternative
felony-misdemeanor for a person to willfully obtain the personal
identifying information of another person and to use such
information to obtain, or attempt to obtain, credit, goods, or
services in the name of the other person without consent. (Pen.
Code 530.5, subd. (a).)
Existing law defines "personal identifying information" to mean
name, address, mother's maiden name, place of employment, date
of birth, unique biometric data including fingerprint, facial
scan identifiers, voiceprint, retina or iris image, or other
unique physical representation, unique electronic data including
information identification number assigned to the person,
address or routing code, telecommunication identifying
information or access device, information contained in a birth
or death certificate, following identifying numbers: telephone,
health insurance, credit card, taxpayer identification, school
identification, state or federal driver's license, state or
federal identification number, social security, employee
identification number, professional or occupational, demand
deposit account, savings account, checking account, PIN or
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password, alien registration, government passport, or any form
of identification that is equivalent to those listed above.
(Pen. Code 530.55.)
Existing law provides that every 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 provisions
proscribing identity theft, or who, with the intent to
defraud, acquires or retains possession of the personal
identifying information of 10 or more other persons, 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. (Pen. Code 530.5, subd.
(b)(3).)
Existing law provides that any person who, with intent to
defraud, sells, transfers, or conveys the personal identifying
information of another person 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.
Further, any person who, with actual knowledge that the
personal identifying information of a specific person will be
used in violation of identity theft provisions who sells,
transfers, or conveys that personal identifying information
shall be punished by a fine or by both a fine and imprisonment,
or by imprisonment in the state prison. (Pen. Code 530.5,
subd. (d).)
Existing law provides that a person who believes that he or she
is the victim of identity theft may initiate an investigation
of the matter by contacting the law enforcement agency with
jurisdiction over the person's residence or place of business.
The victim may then obtain information from various financial
entities concerning the suspected identity theft incident and
may further investigate the matter, as specified. The victim
may petition a court for an expedited determination of his or
her factual innocence concerning misuse of his or her
identifying information. (Pen. Code 530.6.)
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Existing law provides that the proper (territorial)
jurisdiction - venue - for a crime is in a court in the
jurisdiction where the crime was committed. (Pen. Code
777.)
Existing law provides that when a crime is committed partly in
another, trial can be held in either county. (Pen. Code
781.)
Existing law provides that when a person takes property in one
jurisdiction and brings the property into another jurisdiction,
or a person receives the property in another jurisdiction, the
case can be prosecuted in any of the jurisdictions. The
district attorney can also prosecute in a contiguous
jurisdiction if the defendant is arrested in that jurisdiction,
the defendant waives the right to trial in the county where the
crime was committed, and the defendant is charged with one or
more property crimes in the arresting territory. (Pen. Code
786.)
Existing law provides that charges arising under the identity
theft law (Penal Code 530.5) can be filed in the county where
the theft of the personal identifying information occurred, or
the county where the information was used illegally. Where
multiple identity theft crimes involving the same defendant and
the same victim occur in multiple jurisdictions, any one of
those jurisdictions is a proper jurisdiction for trial of all
charges. (Pen. Code 786, subd. (b)(1).)
Existing law provides that where multi-county identity theft
crimes involving the same defendants and the same victim are
filed in a single county, the court shall hold a hearing to
determine if that county is the proper place for trial, or
whether some charges should be "severed" and filed in another
county. The prosecutor shall present evidence that the
prosecutors in the other counties where the crimes have occurred
agree to prosecution in the county where the case was filed.
The court shall consider availability of evidence, fairness to
parties and convenience to witnesses in making this
determination. (Pen. Code 786, subd. (b)(2).)
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Existing law provides that venue for trial of identity theft is
also proper in "the county in which the victim resided at the
time the offense was committed . . . ." The court shall
consider availability of evidence, fairness to parties and
convenience to witnesses in making this determination. (Pen.
Code 786, subd. (b)(3).)
This bill provides that where identity theft crimes committed by
the same defendant or defendants occurred in more than one
county and the crimes involve the same scheme or substantially
similar activity, the charges can be filed in a single county
for prosecution.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
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constitutional rights, and be the least intrusive
means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
between) within a period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
Under existing law prosecutors are unable to
consolidate a series of related criminal activity
involving multiple victims in more than one county.
This also greatly hampers a defendant's ability to
resolve all related cases with one disposition.
Complex identity theft schemes involving numerous
victims in multiple counties are increasingly common.
County prosecutors do not have jurisdiction to charge
offenders with all of the crimes in one criminal scheme
if there are different victims in different counties.
Law enforcement needs the ability to swiftly hold these
offenders accountable for the full scope of their
actions. It is also costly and redundant to transport
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<2> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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defendants from one county to another to prosecute each
victim's case.
An example from a recent San Francisco case: a
defendant committed 24 acts of identity theft, all at
Commercial Bank branches, victimizing different people
in Los Angeles, San Jose, San Francisco and Sacramento.
San Francisco prosecutors could only charge the 5
incidents that occurred in San Francisco. The other
impacted counties will have to charge the defendant
separately, if they choose to do so. The defendant is
reluctant to plead guilty when charges in other
counties may be pending where a plea in SF could be
used as evidence in a different case, and victims in
other counties may never get restitution if other
counties do not pick up the case.
Notably, the proposed change in the law will benefit
the prosecution and the defendant alike. Law
enforcement benefits by (1) not having to conduct
duplicitous investigations in numerous counties, and
(2) the ability to try all cases at once rather than
having several similar trials in multiple counties.
The defendant is benefited by the opportunity to
resolve all outstanding criminal liability in one
trial.
2. Basic Concepts: Jurisdiction - Power of the Court to Try a
Case; Venue - the Place of the Trial; and Vicinage -
Geographic Area from which the Jury is Chosen
Subject Matter Jurisdiction
Subject matter jurisdiction is the basic power of a court to
hear a case. Under Article VI, Section 10, of the California
Constitution, the superior court has "original jurisdiction in
all causes except those given by statute to other trial
courts." Subject matter jurisdiction cannot be waived or
conferred by the parties. A judgment entered in a court
without subject matter jurisdiction is void. (Griggs v.
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Superior Court (1976) 16 Cal.3d 341, 344.) Superior courts
have jurisdiction over felony criminal matters. (Pen. Code
681.) Thus, any superior court in the state has subject matter
jurisdiction over an identity theft case charged as a felony.
Venue and Vicinage
The California Supreme Court in People v. Price (2001) 25
Cal.4th 1046, 1054-1056<3> explained the concepts of venue
(territorial jurisdiction) and vicinage (area from which jury
pool is chosen) as applied to criminal prosecutions.
[V]enue and vicinage are . . . distinct . . . Venue refers to
the location where the trial is held, whereas vicinage refers to
the area from which the jury pool is drawn. It is possible in
theory to change one but not the other.
The concepts . . . are closely related, as a jury pool
ordinarily is selected from the area in which the trial
is to be held. The concepts have different origins and
purposes, however. Venue is historically significant
from a national perspective because . . . the
pre-Revolutionary practice of transporting colonists
who were charged with crimes in the colonies to either
England or other English colonies for trial was among
the principal complaints of the colonists against
England. Objections to that practice led to the
inclusion of Article III, Section 2 in the United
States Constitution. . . . Most California venue
statutes serve a similar purpose in reducing the
potential burden on a defendant who might otherwise be
required to stand trial in a distant location that is
not reasonably related to the alleged criminal conduct.
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<3> In Price, the defendant was charged with various counts of
murder, child abuse and child endangerment in Santa Clara County
and Riverside County. The victims in both counties were the
same. The cases were consolidated and heard in Riverside
County. (Price v. Superior Court, supra, 25 Cal.4th 1046.)
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. . . [T]he general rule of territorial jurisdiction
over felonies is . . . in Section 777: "[E]xcept as
otherwise provided . . . the jurisdiction of every
public offense is in any competent court within the
jurisdictional territory of which it is committed."
Ordinarily the jurisdictional territory of a superior
court is the county in which it sits. ( 691, subd.
(b).) Venue or territorial jurisdiction establishes
the proper place for trial, but is not an aspect of the
fundamental subject matter jurisdiction of the court
and does not affect the power of a court to try a case.
When the Legislature creates an exception to the rule
of Section 777, the venue statute is remedial and for
that reason is construed liberally to achieve the
legislative purpose of expanding criminal jurisdiction.
(Internal citations omitted; emphasis added.)
The court in Price further explained that the right of vicinage
in California is effectively limited to a requirement that there
be a reasonable nexus between the crime and the county of trial.
(Id, at 1074.) The right to an impartial jury is a more
important consideration than the place from which a jury is
chosen. Today, defendants often argue that jurors should know
nothing about a case in order to eliminate prejudice about the
defendant's guilt. (Id, at 1059-1060, 1064-1065.)
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3. Trial of Identify Theft Crimes Committed in Multiple Counties
May be Allowed in a Single County if a Joint Trial is Fair
and Convenient; This Bill Extends the Procedure to Related
Crimes against Multiple Victims
In 2002 the Legislature allowed trial in one county of identity
theft crimes that occurred in multiple counties and involved a
single victim. (SB 1773 (Wayne), Ch. 908, Stats. 2002.) An
identity thief can relatively easily and quickly use a victim's
identifying information in many counties across the state. Such
cases could give rise to overlapping prosecutions, leading to
numerous problems, including investigation and evidence
collection problems, claims that the first prosecutor to file
charges should have resolved all charges arising out of an
incident and others. To address such concerns, the applicable
venue section was amended to direct a court to consider whether
all charges should be tried in one county, or whether some
charges should be severed and tried in a different county. The
prosecutor in such a case is directed to obtain the agreement of
the district attorneys in the other counties where venue would
also lie.
This bill addresses a situation that is also relatively common -
the same defendants are involved in an identity theft scheme
that involved numerous victims in more than one county.
Improper releases of personal information - mistaken release of
social security numbers or credit card information for example -
often affect many citizens. It is also not uncommon for
identity thieves to obtain groups of identity "profiles"
(identifying information sufficient for identity theft) at one
time. Prosecutions of related cases involving multiple victims
in multiple counties present the same types of problems that
arise where crimes against a single victim occur in multiple
counties. Where a common scheme is involved, evidence from each
incident or crime is typically admissible as to each offense.
Requiring separate prosecution in each county where related
identity theft cases occurred could result in presentation of
the same evidence in each county resulting in a waste of
judicial, prosecution and defense resources.
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The current system can be very problematic for defendants also.
A defendant may be unable or unwilling to resolve an identity
theft case where he or she faces prosecutions in other counties
involving the same scheme. Under existing law, the defendant
and prosecutors may spend a great deal of time and expense
negotiating dispositions that reach across county lines.
Misunderstandings can occur in such negotiations. Defendants
must be transported from county to county. In some cases
misunderstandings could require that plea bargains be dissolved.
This process can thus be very wasteful of court resources and
time.
IN MANY CASES WOULD PROSECUTORS AND DEFENDANTS BENEFIT FROM
ALLOWING ONE COUNTY TO PROSECUTE RELATED IDENTITY THEFT
INCIDENTS THAT OCCURRED IN MORE THAN ONE COUNTY AND INVOLVED
MORE THAN ONE VICTIM?
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