BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 208| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 208 Author: Alquist (D) Amended: 4/14/11 Vote: 27 - Urgency SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/12/11 AYES: Hancock, Anderson, Calderon, Harman, Liu, Price, Steinberg SUBJECT : Identity theft and restitution SOURCE : Attorney General DIGEST : This bill specifically provides that restitution in an identity theft case shall include, for a reasonable period of time, the costs of repairing the victim's credit and monitoring the victim's credit report. ANALYSIS : 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. (Penal Code ÝPEN] Section 530.5, subd. (a)) 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 CONTINUED SB 208 Page 2 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 Section 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 Section 530.5, subd. (d)) The California Constitution provides that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the perpetrators of these crimes. Restitution shall be ordered in every case unless compelling and extraordinary reasons exist to the contrary. (California Constitution Article 1 Section 28(b)) Existing law directs the court to order full restitution for the losses caused by the defendant's crime unless the court finds and states compelling and extraordinary reasons for not doing so. (PEN Section 1202.4, subd. (f)) Existing decisional law provides that restitution must be determined from the losses actually caused by the defendant's crime. ( People v. Lyon (1996) 49 Cal.App.4th 1521.) With the exception of lewd conduct cases, compensable losses are limited to economic losses. ( People v. Giordano (2007) 42 Cal.4th 644) Existing decisional law provides that the restitution "ensures that amends . . . be made to society for the breach of the law, enables people who suffer loss as a result of criminal activity Ýto] be compensated ? acts as a CONTINUED SB 208 Page 3 deterrent to future criminality . . . and to rehabilitate the criminal." ( People v. Crow (1993) 6 Cal.4th 952, 958, internal quotation marks omitted.) Restitution orders in probation cases can be somewhat broader than in cases where probation is denied. ( People v. Giordano , supra, 42 Cal.4th 644, 653; PEN Section 1203.1) Existing law provides that restitution orders are enforceable as a civil judgment - to ensure that a victim of a crime who incurs any economic loss shall receive restitution directly from any defendant convicted of that crime. If a restitution order is made, the defendant has the right to a hearing before the court to dispute the determination of the amount of the order. A restitution order may be modified upon motion of the district attorney, the victim or victims, or the defendant. (PEN Section 1202.4, subds. (f) and (i)) Existing law provides that a restitution order shall be prepared by the court and identify each victim and each loss. (PEN Section 1202.4, subd. (f)(3)) Existing law provides that "when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined." (PEN Section 1202.46, subd. (f)) This bill provides that restitution shall include "expenses for a period of time reasonably necessary to make the victim whole, for the costs to monitor the credit report of, and for the costs to repair the credit of, a victim of identity theft, as defined in Section 530.5." Prior Legislation SB 1087 (Alquist) - Chapter 107, Statutes of 2010 SB 432 (Runner) - Chapter 49, Statutes of 2009 AB 2928 (Spitzer) - Chapter 752, Statutes of 2008 SB 612 (Simitian) - Chapter 47, Statutes of 2008 AB 367 (De León) - Chapter 132, Statutes of 2007 AB 1505 (La Suer) - Chapter 555, Statutes of 2006 CONTINUED SB 208 Page 4 SB 246 (Escutia) - Chapter 380, Statutes of 2004 AB 1773 (Wayne) - Chapter 908, Statutes of 2002 SB 1254 (Alpert) - Chapter 254, Statutes of 2002 SB 245 (Wyland) - Chapter 478, Statutes of 2001 SB 125 (Alpert) - Chapter 493, Statutes of 2001 SB 168 (Bowen) - Chapter 720, Statutes of 2001 AB 1897 (Davis) - Chapter 956, Statutes of 2000 AB 1862 (Torlakson) - Chapter 632, Statutes of 2000 AB 156 (Murray) - Chapter 768, Statutes of 1997 AB 3343 (Hannigan) - Chapter 1242, Statutes of 1994 FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 4/14/11) Attorney General (source) American Federation of State County and Municipal Employees Association for Los Angeles Deputy Sheriffs California Chamber of Commerce California Retailers Association Consumer Federation of California CoreLogic First American Corporation Los Angeles County Probation Officers Union Personal Insurance Federation of California Reed Elsevier, Inc. Riverside Sheriffs' Association TransUnion ARGUMENTS IN SUPPORT : According to the author: "Every year more Californians become victims of identity theft. With changes in technology, increasing amounts of personal identifying information available electronically, and a souring economy, identity theft has become lucrative and sophisticated crime. We have more victims and more extensive victimization. "Victims of identity theft often suffer for years. Victims' information is distributed for use among many identity thieves. Even where the initial criminal is caught, victimization may not end. Victims must monitor CONTINUED SB 208 Page 5 and correct their credit histories for years after the crime occurred. "Victims deserve to have a specific right to restitution for credit monitoring and repair. Restitution for credit repair costs and credit monitoring for a reasonable period of time necessary to make the victim whole should be mandated as part of restitution to all identity theft victims." RJG:kc 4/14/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED