BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 208|
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                                 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 
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          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 

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          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

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          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 

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            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

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