BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   June 16, 2009
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                Juan Arambula, Chair

                    SB 226 (Alquist) - As Amended:  June 11, 2009


           SUMMARY  :   Expands criminal jurisdiction for multiple offenses  
          of identity theft to any county where one of the identity theft  
          crimes occurred when the offenses involve the same defendant or  
          defendants, and the same scheme or substantially similar  
          activity.  Specifically,  this bill  :   

          1)Provides that in the prosecution for multiple offenses of  
            identity theft involving the same defendant or defendants and  
            the same scheme or substantially similar activity that  
            occurred in multiple jurisdictions, the jurisdiction for all  
            those offenses, and for associated offenses connected together  
            in commission with an underlying identity theft offense, is in  
            any jurisdiction where at least one of the offenses occurred.   


          2)Requires the court to consider whether or not the identity  
            theft offenses involved substantially similar activity or the  
            same scheme when deciding whether or not a matter should  
            proceed in the county of filing or whether one or more counts  
            should be severed. 

           EXISTING LAW  :

          1)Mandates 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.  [Penal Code Section 786(b)(1).]

          2)Requires courts to hold a hearing where multi-county identity  
            theft crimes involving the same defendants and the same victim  
            are filed in a single county, to determine if that county is  








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            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.  [Penal Code Section  
            786(b)(2).]

          3)Necessitates in actions for unauthorized use, retention, or  
            transfer of personal identifying information are filed in the  
            county in which the victim resided at the time the offense was  
            committed, and no other basis for the jurisdiction applies,  
            the court, upon its own motion or the motion of the defendant,  
            shall hold a hearing to determine whether the county of the  
            victim's residence is the proper venue for trial of the case.   
            In ruling on the matter, the court shall consider the rights  
            of the parties, the access of the parties to evidence, the  
            convenience to witnesses, and the interests of justice. [Penal  
            Code Section 786(b)(3).]

          4)Provides that any person who falsely personates another person  
            in his or her private or official capacity is guilty of an  
            alternate felony-misdemeanor.  False personation generally  
            involves subjecting the person whose identity was assumed to  
            prosecution, suit or to pay a debt.  (Penal Code Section 529.)

          5)Creates 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.  [Penal Code Section  
            530.5(a).]

          6)Defines "personal identifying information" as the 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 an 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; and the 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 number, employee identification number,  








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            professional or occupational, demand deposit account, savings  
            account, checking account, personal identification number or  
            password, alien registration, government passport, or any form  
            of identification that is equivalent to those listed above.   
            (Penal Code Section 530.55.)

          7)States 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.  [Penal Code Section 530.5(b)(3).]

          8)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, 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, sells,  
            transfers, or conveys that personal identifying information  
            shall be punished by a fine; by both a fine and imprisonment,  
            or by imprisonment in the state prison.  [Penal Code Section  
            530.5(d).]

          9)Mandates 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.  (Penal Code Section 530.6.)

          10)Declares that the proper (territorial) jurisdiction - venue -  
            for a crime is in a court in the jurisdiction where the crime  
            was committed.  (Penal Code Section 777.)









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          11)Asserts that when a crime is committed in part in one county  
            (or other jurisdictional entity) and in part in another  
            county, the trial can be held in either county.  (Penal Code  
            Section 781.)

          12)Provides that multiple charges of rape, child abuse, spousal  
            abuse, sexual acts with children, or stalking that involve the  
            same defendant and victim but occurred in multiple  
            jurisdictions can be tried in any jurisdiction in which one of  
            the acts occurred.  (Penal Code Section 784.7.)

          13)Allows the trial for child abduction may be held in the  
            jurisdiction from which the child was taken, the jurisdiction  
            where the child is held, or the jurisdiction where the child  
            is found.  (Penal Code Section 784.5.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Throughout the  
            state, high tech and large scale identity theft rings are on  
            the rise, taking a toll on society both emotionally and  
            fiscally.

          "Today's identity thieves are orchestrating sophisticated  
            criminal schemes involving numerous victims in multiple  
            counties. These criminals go from county to county committing  
            various identity crimes against many different victims.

          "Unfortunately, under existing law, prosecutors are not allowed  
            to combine all the counts against a particular defendant in a  
            scheme and try the counts together in one jurisdiction.  
            Prosecutors can only pursue cases involving the same victim or  
            that occurred in the prosecutors' home county.  

          "Under current law when there are multiple victims, either the  
            cases in other counties never get pursued or each individual  
            county of jurisdiction is forced to separately try each  
            individual crime.

          "This means that many victims may never get the restitution to  
            which they are entitled or individual counties must conduct  
            separate investigations and trials.  It also means that one  
            jury cannot hear all the counts against the thief. This  








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            ultimately works in the favor of the criminals rather than the  
            victims.

          "The current process is costly both to the counties as well as  
            the state and many times the criminal is not held accountable  
            for each individual crime they commit.

          "We need to give prosecutors every tool possible to effectively  
            protect every similarly situated victim whose information has  
            been stolen and assets have been pillaged in order to send a  
            deterrent to identity thieves."

           2)Background  :  According to information provided by the author,  
            "Since identity thieves are more sophisticated today and these  
            crimes are on the rise, it is important that the county who  
            arrests the defendant have the ability to try the person on  
            all counts whether all the crimes were committed in one county  
            or multiple counties.

          "Under existing law, prosecutors are not allowed to combine all  
            the counts against a particular defendant in a scheme and try  
            the counts together in one jurisdiction. Prosecutors can only  
            pursue cases involving the same victim or that occurred in the  
            prosecutors' home county."  
           
           3)Jurisdictional Expansion as a Result Technology Based Crime  :   
            Identity theft is a generally detached crime because 85% of  
            perpetrators have no personal relationship with their victims.  
             [Synovate, Federal Trade Commission, Identity Theft Survey  
            Rep. (Nov. 2007) p.28.]  Many incidents go unprosecuted  
            because they occur in large urban areas where there is a  
            magnitude of other crimes.  [Assm. Com. on Pub. Safety,  
            Committee Analysis of Sen. Bill No. 612 (2007-2008 Reg. Sess.)  
            as amended Apr. 9, 2007, p. 4.]  This geographic disconnect  
            between the impact and commission of the crime can leave  
            prosecutors in paralysis.  (Ibid.)  Authorities in the  
            victim's jurisdiction are often legally unable to prosecute in  
            that venue.  Furthermore, authorities in the jurisdiction of  
            the commission of the crime may have too many pending cases,  
            or little incentive, to press charges because the citizens  
            they represent have been relatively unaffected by the crime  
            committed on their own soil.  [See Ibid. (noting that the  
            impact of the crime is often felt in the locality of the  
            victim, where property concerns must be addressed).]  As a  
            result, it is easy to see why identity theft is the fastest  








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            growing crime in the country.  Last year alone, over 9.9  
            million Americans were victims of identity theft at a cost of  
            roughly $5 billion.  [Synovate, Federal Trade Commission,  
            Identity Theft Survey Rep. (Sept. 2003) p.7.]

              a)   Subject Matter Jurisdiction  :  Subject matter  
               jurisdiction is the basic power of a court to hear a  
               particular type of case relating to a particular subject  
               matter.  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.  
               Superior Court (1976) 16 Cal.3d 341, 344.]  Superior courts  
               have jurisdiction over felony criminal matters.  (Penal  
               Code Section 681.)  Thus, any superior court in the state  
               has subject matter jurisdiction over an identity theft case  
               charged as a felony.  

              b)   Territorial Jurisdiction  :  Territorial jurisdiction  
               bestows the power of a court to render a judgment  
               concerning events that have occurred within a well-defined  
               territory or venue. California Penal Code Section 777's  
               rule of territorial jurisdiction states that "except as  
               otherwise provided by law the jurisdiction of every public  
               offense is in any competent court within the jurisdictional  
               territory of which it is committed."  (Penal Code Section  
               777.)  However, when the Legislature makes an exception to  
               Penal Code Section 777, the statute is construed liberally  
               to match the legislative purpose of expanding criminal  
               jurisdiction.  [Price v. Superior Court (2001) 25 Cal. 4th  
               1046.]  In Price v. Superior Court, the California Supreme  
               Court held that the Legislature's power to designate venue  
               is limited by the requirement of a reasonable relationship  
               or nexus between the venue and the commission of the  
               offense.  (Price v. Superior Court, supra, 25 Cal. 4th at  
               1075.)

             The "contemporary right to trial by jury no longer  
               contemplates jurors who are familiar with the parties and  
               the locality and therefore are able to supply their own  
               personal knowledge."  (Id. at 1052.)  Venue, the location  
               where the trial is held, and vicinage, the area from which  
               a jury pool is drawn, although closely related, have  








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               different origins and purposes. 

             "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.  (Id. at 1054-55.)  This section states, in  
               part, that "the Trial of all Crimes, except in Cases of  
               Impeachment, shall be by Jury; and such Trial shall be held  
               in the State where the said Crimes shall have been  
               committed.  (U.S. Const. art. III, Section 2, cl. 3.)  The  
               Constitution did not specify any other geographic  
               requirements beyond state boundaries until the adoption of  
               the Sixth Amendment, which states that "in all criminal  
               prosecutions, the accused shall enjoy the right to a speedy  
               and public trial, by an impartial jury of the State and  
               district wherein the crime shall have been committed, which  
               district shall have been previously ascertained by law."   
               (Id., 6th Amend.)

             The California Constitution states that "trial by jury is an  
               inviolate right and shall be secured to all."  (Cal. Const.  
               art. I, Section 16.)  Although the California Supreme Court  
               failed to recognize this as an express vicinage right, the  
               court has repeatedly interpreted article I, section 16 of  
               the California Constitution to include an implicit vicinage  
               right.  [See Price v. Superior Court, supra, 25 Cal. 4th at  
               1071 (acknowledging history of implicit vicinage rights in  
               article I, section 16 of the California Constitution).] 

             Departing from these previous assumptions, the Price Court  
               ruled that the vicinage clause in the Sixth Amendment does  
               not apply to California under the Fourteenth Amendment, and  
               there is no implicit vicinage right in the California  
               Constitution.  (Id. at 1059.)  Thus, under Price,  
               California is not bound to allow jury selection from the  
               county where the crime was committed.  (Id. at 1060.)  

             For its reasoning the court looked at the timing and  
               enactment of the Federal Judiciary Act of 1789 and the Bill  
               of Rights.  (Id. at 1061.)  The Price Court concluded that  
               the concurrence of these doctrines was sufficient  








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               contextual evidence indicating that Congress intended  
               "district" to pertain to the federal judicial districts  
               then in existence and, accordingly, only in federal cases.   
               (Id. at 1061-62.)  The federal judicial district lines  
               drawn by Congress coincided with state borders with the  
               exceptions of Massachusetts and Virginia, which were split  
               into two separate judicial districts.  The Federal  
               Judiciary Act only mandates jury selection from the county  
               of the commission of the offense for capital crimes.  (See  
               Federal Judiciary Act of 1789, 1 Stat. 88 Section 29.)   
               Finding no persuasive holdings in either federal or state  
               trials addressing the incorporation of the Sixth  
               Amendment's vicinage clause, the Price Court concluded that  
               there is no constitutional vicinage right to a jury trial  
               in the county of the commission of the crime.  (Id. at  
               1075.)

           4)Expanding Venue Following Price  :  In 2002, the Legislature  
            enacted AB 1173 (Wayne), Chapter 908, Statutes of 2002, which  
            allowed district attorneys to prosecute persons for the  
            unauthorized use of personal identifying information in the  
            county where the information was taken, or the county where  
            the information was used for an illegal purpose.  [Assm. Bill  
            No. 1773 (2001-2002 Reg. Sess.).]  SB 1773 flexed the  
            Legislature's power to designate venue conferred by the  
            decision in Price. 

          Defendants may now be tried in the victim's venue, potentially  
            far away from the locality of the commission of the offense.   
            This standard yields the possibility of criminal proceedings  
            in counties never before traversed, seen, or contemplated by  
            defendants.  Unlike prior statutes, Penal Code Section  
            786(b)(2) does not require that defendants commit actions  
            requisite for accomplishing the offense in the county of such  
            proceedings. 

          Penal Code Section 786(b)(2) is the only statute that does not,  
            at a minimum, require that the defendant be apprehended in, or  
            commit at least part of the offense in, the county of the  
            venue of the trial.  This section would seem to stretch the  
            boundaries of the reasonable relationship or nexus standard of  
            the Price holding because it challenges prior assumptions of  
            defendant rights.  But under the Price holding, this venue  
            expansion is a valid use of the Legislature's power. 









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          This bill expands territorial jurisdiction by allowing venue to  
            be had in any county where the same defendant or defendants  
            commit identity theft crimes as part of a scheme or involve  
            substantially similar acts.  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.

          The current system is also problematic for defendants.  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.  

          With the enactment Penal Code Section 786(b)(2) and Price  
            decision, this bill appears to be a natural progression in the  
            expansion of permissible venues for the consolidation of  
            offenses.  The detached nature of identity theft is no match  
            against antiquated territorial jurisdiction statutes. 

          However, the Legislature must be careful that it is not putting  
            a greater burden on the defendant.  The presumption of  
            innocence is a fundamental aspect of criminal hearings.  This  
            aspect is preempted by this bill as the burden of travel is  
            automatically fixed upon the defendant or defendants before  
            the prosecution proves any culpability.  Under this bill, an  
            innocent defendant could incur the same hardship to those  
            eliminated for victims of identity theft an unreasonable  
            burden if required to attend a trial hundreds of miles away. 

           5)Forum Shopping  :  There may be a concern that if this bill were  
            to pass that it would provide for jurisdiction of a criminal  
            action in identity theft cases in a multitude of counties.   
            Obviously, this would give prosecutors a choice of venues  
            where the crime could be prosecuted.  It may be argued that  
            the choice would be in a county where prosecutors would obtain  
            a conviction.  








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           6)Out-of-State Identity Theft Jurisdiction  :  Penal Code Section  
            777 provides "that every person is liable to punishment by the  
            laws of this State for a public offense committed by him  
            therein."  In other words, California law may only punish  
            offenses committed within the state's borders.  This bill  
                                                              gives trial jurisdiction for identity theft in any county in  
            which the victim resides, regardless of whether or not the  
            offense was committed outside California.  In addition to  
            conflicting with the general jurisdictional statute above,  
            this bill raises state sovereignty issues in that California  
            would be able to prosecute a New York resident for a crime  
            committed entirely within the state of New York.  

           7)Argument in Support  :  According to the  San Francisco City and  
            County District Attorney's Office  , "Across the state, high  
            tech and large scale identity theft rings are becoming more  
            and more common.  Identity thieves are orchestrating  
            sophisticated criminal schemes involving numerous victims in  
            different counties.  In these schemes, too many offenders  
            escape accountability.  Today, county prosecutors are limited  
            in our ability to pursue all of the crimes committed in these  
            complex schemes because we only have jurisdiction over those  
            crimes involving one victim or that occurred in the same  
            county.  Without the ability to prosecute the entire criminal  
            scheme, victims in other counties may never get restitution  
            and may never get court-ordered absolution from crimes  
            committed by identity thieves in their names.  Even if other  
            counties decide to prosecute the same offenders, the cost to  
            the criminal justice system for shipping offenders from county  
            to county to prosecute the same criminal scheme is enormous.

          "SB 226 gives prosecutors jurisdiction to hold roving identity  
            thieves accountable for every crime committed in complex  
            identity theft schemes.  Prosecutors should be able to  
            effectively protect every similarly situated victim whose  
            information is being stolen and assets are being pillaged,  
            regardless of the victims' counties of residence.  This is  
            both cost-efficient and better for public safety."

           8)Prior Legislation  :

             a)   AB 1773 (Wayne), Chapter 908, Statutes of 2002, allows a  
               district attorney to prosecute a person for the  
               unauthorized use of personal identifying information in the  








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               county where the information was taken, or the county where  
               the information was used for an illegal purpose. 

             b)   AB 2886 (Frommer), Chapter 522, Statutes of 2006,  
               creates new crimes related to identity theft for persons  
               previously convicted and for persons who sell the personal  
               identifying information of another person.  

             c)   SB 612 (Simitian), Chapter 47, Statutes of 2008,  
               provides than when an action for unauthorized use,  
               retention, or transfer of personal identifying information  
               is filed in the county in which the victim resided at the  
               time the offense was committed, and no other basis for the  
               jurisdiction applies, the court, upon its own motion or the  
               motion of the defendant, shall hold a hearing to determine  
               whether the county of the victim's residence is the proper  
               venue for trial of the case.  In ruling on the matter, the  
               court shall consider the rights of the parties, the access  
               of the parties to evidence, the convenience to witnesses,  
               and the interests of justice.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Association of California Insurance Companies
          California Chamber of Commerce
          California District Attorneys Association
          California State Association of Counties
          California Statewide Law Enforcement Association
          Consumers Union 
          Crime Victims United of California 
          District Attorney, City and County of San Francisco
          District Attorney, Los Angeles County
          First Data Corporation
          Peace Officers Research Association of California 
          Privacy Rights Clearinghouse
          San Bernardino County Office of the Sheriff
          Santa Clara County Board of Supervisors
           
            Opposition 
           
          None










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           Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744