BILL ANALYSIS                                                                                                                                                                                                    Ó






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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








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          Prepared by:Jerome McGuire / PUB. S. / 
          8/19/15 20:54:40


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