BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 32|
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THIRD READING
Bill No: AB 32
Author: Waldron (R), et al.
Amended: 7/15/15 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 6-0, 7/7/15
AYES: Hancock, Glazer, Leno, Liu, Monning, Stone
NO VOTE RECORDED: Anderson
ASSEMBLY FLOOR: 78-0, 4/9/15 - See last page for vote
SUBJECT: Computer crimes
SOURCE: Author
DIGEST: This bill clarifies the penalty provisions for the
alternate felony-misdemeanor of improperly accessing and
disrupting, denying service from or taking data from a computer
system.
ANALYSIS:
Existing law:
1)Defines numerous computer or electronic data offenses and
imposes a wide range of penalties based on the seriousness of
the offense or extent of harm caused by the defendant,
including by a fine not exceeding $10,000, by felony
imprisonment pursuant to Penal Code Section 1170, subdivision
(h) for a term of term of 16 months, two years or three years,
or both, or by a fine not exceeding $5,000, or by imprisonment
in a county jail not exceeding one year. These penalties
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apply where any person knowingly:
a) Accesses and without permission alters, damages,
deletes, destroys, or otherwise uses any data, computer,
computer system, or computer network in order to devise or
execute any scheme or artifice to defraud, deceive, or
extort, or wrongfully control or obtain money, property or
data.
b) Accesses and without permission takes, copies or makes
use of any data from a computer, computer system, or
computer network, or takes or copies any supporting
documentation, whether existing or residing internal or
external to a computer, computer system, or computer
network.
c) Accesses and without permission adds, alters, damages,
deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or
external to a computer, computer system, or computer
network
d) Without permission, disrupts or causes the disruption of
computer services or denies or causes the denial of
computer services, or denies or causes the denial of
computer services to an authorized user of a computer,
computer system, or computer network.
e) Disrupts or improperly accesses a government or public
safety computer system. (Pen. Code § 502, subds. (c) 1),
(2), (4), (5), (10), (11), or (12); and (d)(1).)
2)Provides that any person who knowingly and without permission
uses or causes to be used computer services shall be punished
as follows:
a) For the first violation that does not result in injury,
and where the value of the computer services used does not
exceed $950, by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment; and
b) For any violation that results in a victim expenditure
in an amount more than $5,000 or in an injury, if the value
of the computer services used exceeds $950, or for any
second or subsequent violation, by a fine not exceeding
$10,000, by imprisonment pursuant to realignment for 16
months, or two or three years, or by both that fine and
imprisonment, or by a fine not exceeding $5,000, by
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imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment. (Pen. Code § 502, subds.
(c)(3); and (d)(2).)
3)Punishes any person who knowingly and without permission
provides or assists in providing a means of accessing,
accesses, or causes to be accessed a computer, computer
system, or computer network as follows:
a) A first violation that does not result in injury is an
infraction punishable by a fine not exceeding $1,000.
b) Any violation that results in a victim expenditure in an
amount not more than $5,000, or for a second or subsequent
violation, is a misdemeanor, punishable by a fine not
exceeding $5,000, by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment;
and
c) Any violation that results in a victim expenditure above
$5,000 is punishable by a fine not exceeding ten thousand
dollars $10,000, by felony imprisonment pursuant to Penal
Code Section 1170, subdivision (h), for 16 months, two or
three years, or both, or by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment. (Pen. Code § 502, subds.
(c) and (d)(3).)
4)Punishes any person who knowingly introduces any computer
contaminant into any computer, or computer system, or computer
network as follows:
a) A first violation that does not result in injury is a
misdemeanor punishable by a fine not exceeding $5,000, by
imprisonment in a county jail not exceeding one year, or by
both that fine and imprisonment; and
b) A violation that results in injury, or a subsequent
violation, is punishable by a fine not exceeding $10,000,
by imprisonment in a county jail not exceeding one year, or
by imprisonment pursuant Penal Code Section 1170,
subdivision (h), or both that fine and imprisonment. (Pen.
Code § 502 subds. (c)(14) and (d)(4).)
5)Punishes any person who knowingly and without permission uses
the Internet domain name of another individual, corporation,
or entity in connection with the sending of one or more
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electronic mail messages, and thereby damages or causes damage
to a computer, computer system, or computer network as
follows:
a) For a first violation that does not result in injury, an
infraction punishable by a fine not more than $1,000; and
b) For any violation that results in injury, or for a
second or subsequent violation, by a fine not exceeding
five thousand dollars ($5,000), or by imprisonment in a
county jail not exceeding one year, or by both that fine
and imprisonment. (Pen. Code § 502, subds. (c)(9) and
(d)(5).)
This bill defines specified computer and data access and harm
crimes as standard alternate-felony misdemeanors, with a maximum
misdemeanor fine of $5,000. Specifically, the bill provides
that these offenses are punishable as a felony for a term of 16
months, two years or three years and a fine of up to $10,000;
and punishable as a misdemeanor by a jail term of up to one
year, a fine of up to $5,000, or both a jail term and the fine.
Background
The existing fine structure for crimes involving unauthorized
access and harm to computers and data is unusual and confusing.
The following is a representative example:
(C) For any violation that results in a victim
expenditure in an amount greater than five thousand
dollars ($5,000), by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170 for 16 months, or two or
three years, or by both that fine and imprisonment, or
by a fine not exceeding five ten thousand dollars
($5,000), or by imprisonment in a county jail not
exceeding one year, or by both that fine and
imprisonment. (Pen. Code § 502, subd. (d)(3)(C).)
This appears to describe an alternate felony-misdemeanor
(wobbler) in two ways: 1) by including two separate maximum
fines ($10,000 or $5,000) as stand-alone penalties, and 2)
providing that the court can sentence the defendant to a felony
sentence pursuant to Penal Code 1170, subdivision (h) or impose
a misdemeanor jail term of up to a year.
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Penal Code Section 17, subdivision (b), defines an alternate
felony-misdemeanor, or wobbler. In relevant part, Section 17
provides:
(b) When a crime is punishable, in the discretion of the
court, either by imprisonment in the state prison or
imprisonment in a county jail under the provisions of
subdivision (h) of Section 1170, or by fine or
imprisonment in the county jail, it is a misdemeanor for
all purposes under the following circumstances:
(1) After a judgment imposing a punishment other than
imprisonment in the state prison or imprisonment in a
county jail under the provisions of subdivision (h) of
Section 1170.
Applying Penal Code Section 17, subdivision (b), to the computer
crimes covered by this bill, the sentencing court could impose a
fine of up to $10,000, with no felony jail or prison term and
the offense would, by definition, be a misdemeanor.
The court could impose a felony jail or prison sentence and no
fine, and the offense would be a felony. The court could impose
a felony jail or prison term and a fine of up to $10,000 and the
offense would be a felony. Simply stating that a crime is a
felony punishable pursuant to Section 1170, subdivision (h),
means that the defendant is subject to a sentence of16 months,
two years or three years and a fine of up to $10,000. There is
thus no need to specify that the maximum felony fine for a
violation of Section 502 is $10,000.
It is most likely that an appellate court would find that the
maximum fine for a misdemeanor under existing law $5,000, as the
misdemeanor jail term is described in conjunction with a fine of
up to $5,000. However, it can also be argued that the court
could impose a fine of up to $10,000 and a misdemeanor jail
term. As noted above, if a crime is punishable by a fine alone,
it is a wobbler. If the court punishes the defendant by a
county jail term, but not pursuant to Section 1170, subdivision
(h), the offense is a misdemeanor
Senate Public Safety Committee staff has found no appellate
cases discussing the fine structure in Penal Code Section 502.
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This bill clarifies the confusing the penalty provisions in
Penal Code Section 502, subdivision (d). The bill, however,
does not address similar or equivalent penalty provisions in
other subdivisions of Penal Code Section 502. The application
of these provisions by the courts will allow the Legislature to
compare both penalty provision forms in practice.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 8/18/15)
Association of Deputy District Attorneys
Association for Los Angeles Deputy Sheriffs
California College and University Police Chiefs
California Communities United Institute
California District Attorneys Association
California Police Chiefs Association
Los Angeles Police Protective League
Riverside Sheriffs Association
OPPOSITION: (Verified 8/18/15)
None received
ASSEMBLY FLOOR: 78-0, 4/9/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina
Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,
Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,
Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson,
Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Calderon, O'Donnell
AB 32
Page 7
Prepared by:Jerome McGuire / PUB. S. /
8/19/15 20:54:40
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