BILL ANALYSIS Ó
AB 441
Page 1
Date of Hearing: April 7, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
441 (Wilk) - As Introduced February 23, 2015
SUMMARY: Creates a sentencing enhancement of two additional
years of imprisonment for any person convicted of identity theft
if the victim was 65 years of age or older at the time of the
offense.
EXISTING LAW:
1)Provides that every person who willfully obtains personal
identifying information, as defined, of another person, and
uses that information for any unlawful purpose, including to
obtain, or attempt to obtain, credit, goods, services, real
property, or medical information without the consent of that
person, is guilty of a public offense, and upon conviction
therefor, 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 county jail for 16
months, or two or three years. (Pen. Code, § 530.5, subd.
(a).)
2)States that every person who, with the intent to defraud,
acquires or retains possession of the personal identifying
information of another person is guilty of a public offense,
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and is punishable by a fine, by imprisonment in a county jail
not to exceed one year, or by both a fine and imprisonment.
(Pen. Code, § 530.5, subd. (c)(1).)
3)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 this section, 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
for 16 months, or two or three years. (Pen. Code, § 530.5,
subd. (c)(2).)
4)Provides that every person who, with the intent to defraud,
sells, transfers, or conveys the personal identifying
information of another person is punishable 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 county
jail for 16 months, or two or three years. (Pen. Code, §
530.5, subd. (d)(1).)
5)Specifies that any person who is not a caretaker who violates
any provision of law proscribing theft, embezzlement, forgery,
fraud, or identity theft, with respect to the property or
personal identifying information of an elder or a dependent
adult, and who knows or reasonably should know that the victim
is an elder or a dependent adult, is punishable as follows:
a) By a fine not exceeding $2,500, or by imprisonment in a
county jail not exceeding one year, or by both that fine
and imprisonment, or by a fine not exceeding $10,000, or by
imprisonment in the county jail for two, three, or four
years, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal
property taken or obtained is of a value exceeding $950.
b) By a fine not exceeding $1,000, by imprisonment in a
county jail not exceeding one year, or by both that fine
and imprisonment, when the moneys, labor, goods, services,
or real or personal property taken or obtained is of a
value not exceeding $950. (Pen. Code, § 368, subd. (d).)
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6)Provides that any caretaker of an elder or a dependent adult
who violates any provision of law proscribing theft,
embezzlement, forgery, fraud, or identity theft, with respect
to the property or personal identifying information of that
elder or dependent adult, is punishable as follows:
a) By a fine not exceeding $2,500, or by imprisonment in a
county jail not exceeding one year, or by both that fine
and imprisonment, or by a fine not exceeding $10,000, or by
imprisonment in the county jail for two, three, or four
years, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal
property taken or obtained is of a value exceeding $950.
b) By a fine not exceeding $1,000, by imprisonment in a
county jail not exceeding one year, or by both that fine
and imprisonment, when the moneys, labor, goods, services,
or real or personal property taken or obtained is of a
value not exceeding $950. (Pen. Code, § 368, subd. (e).)
7)Defines "elder" as any person who is 65 years of age or older.
(Pen. Code, § 368, subd. (g).)
8)States that upon conviction of any felony it shall be
considered a circumstance in aggravation in imposing the upper
term if the victim of an offense is particularly vulnerable,
or unable to defend himself or herself, due to age or
significant disability. (Pen. Code, § 1170.85, subd. (b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Seniors are one
of the most vulnerable groups of people and it is important we
protect them from being taken advantage of. Technology is
constantly changing and due to their unfamiliarity, seniors
are more likely to be targets for identity theft scams. This
bill hopes that the increased punishment will deter criminals
from targeting vulnerable seniors."
2)Necessity of this Bill: Under existing law, identity theft
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may be punished as either a misdemeanor or a felony. A person
convicted of misdemeanor identity theft may be sentenced to up
to one year in county jail. If convicted of felony identity
theft, the person may be imprisoned in the county jail for 16
months, or two years or three years. It is within the court's
discretion to apply the term that best serves the interests of
justice. (Pen. Code, § 1170, subd. (b).) The court may
consider circumstances in mitigation and aggravation when
deciding which term to apply. (Ibid.) The vulnerability of a
victim, specifically due to age or disability, is a recognized
circumstance in aggravation. (Pen. Code, § 1170.85, subd. (b);
Cal. Rules of Court, Rule 4.421, subd. (a)(3).)
Existing law also provides for enhanced penalties for specified
crimes committed against elderly or dependent persons. (Pen.
Code, § 368.) Identity theft is one of the crimes specified
in the statute that may trigger the enhanced penalty. (Ibid.)
If convicted under this statute, a person may face misdemeanor
or felony penalties, depending upon the value of the money,
labor, goods, services, or real or personal property taken or
obtained. If the value exceeds $950, then the felony penalty
would apply and the person would face imprisonment for two,
three or four years, and a fine not exceeding $10,000. (Pen.
Code, § 368, subds. (d)(1) and (e) (1).) If the value does
not exceed $950, then the misdemeanor penalty would apply and
the person could face up to one year in jail, and a fine not
exceeding $1000. (Pen. Code, § 368, subds. (d)(2) and
(e)(2).)
In light of the existing statute that provides enhanced
penalties for financial crimes committed against elderly
persons, which specifically includes identity theft, as well
as the ability of the court in an identity theft case to
choose the upper term for various reasons, including if the
victim was particularly vulnerable due to age, there does not
appear to be a demonstrated need for this bill.
3)Argument in Support: According to the California Senior
Legislature, the sponsor of this bill, "This bill would
provide an enhanced sentence of an additional 2 years of
imprisonment for a felony conviction when the victim is 65
years of age or older.
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"We are hopeful that the increased punishment will deter
criminals from targeting vulnerable senior citizens."
4)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "The United States Department of
Justice, in a statistical study covering a 10 year span
between 2003-2013, found that people aged 65 years or older
actually experienced lower rates of identity theft (5.0%) than
people aged 25-49 (7.9%) and people aged 50-64 (7.8%).
(Morgan, Rachel and Mason, Britney, "Crimes Against the
Elderly, 2003-20013" [as of March 24, 2015, hosted at
http://www.bjs.gov/content/pub/pdf/cae0313.pdf ].) Additional
studies by the Federal Trade Commission have reached the same
conclusion. In other words, the people most vulnerable to
identity theft are working age adults, who are taking out home
mortgages, opening new bank accounts and applying for credit,
and not seniors living on fixed incomes. By singling out
identity theft against seniors for harsher punishment, AB 441
may have the unintended effect of pushing would be identity
thieves the more prevalent identity theft epidemic plaguing
working age adults.
"AB 441 would take away discretion from trial judges who are
best placed to consider the individual punishments that find
individual offenders. Judges are currently vested with
substantial discretion to impose a wide variety of penalties
and conditions of parole and probation that can adequately
punish identity theft and associated crimes when those crimes
target more vulnerable victims, whether that vulnerability is
related to age or other factors not considered by AB 441, such
as a disability or infirmity."
5)Related Legislation:
a) SB 196 (Hancock) would, commencing July 1, 2016,
authorize a county adult protective services agency to file
a petition for a protective order on behalf of an elder or
dependent adult if the elder or dependent adult has been
identified as lacking capacity and a conservatorship is
being sought. SB 196 is pending hearing by the Senate
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Committee on Judiciary.
b) SB 338 (Morell) would provide that a person who knows or
reasonably should know that the victim is an elder or
dependent adult, and under circumstances or conditions
likely to produce significant or substantial mental
suffering, willfully causes or permits the victim to suffer
unjustifiable mental suffering, is punishable by
imprisonment in a county jail not exceeding one year, or by
a fine not to exceed $6,000, or by both that fine and
imprisonment, or by imprisonment in the state prison for
two, three, or four years. SB 338 is pending hearing by
the Senate Committee on Public Safety.
6)Prior Legislation:
a) AB 2623 (Pan), Chapter 823, Statutes of 2014, expands
the elder and dependent adult abuse training curriculum
requirements mandatory for specified peace officers, to
include legal rights and remedies available to victims; and
requires the Commission on Peace Officer Standards and
Training (POST) to consult with local protective services
offices and the Office of the State Long-Term Care
Ombudsman when creating new or updated training materials.
b) SB 543 (Block), Chapter 782, Statutes of 2013, specifies
a conviction for theft, embezzlement, forgery, fraud, or
identity theft against an elder or dependent adult as a
prior qualifying offense in the crime of petty theft with a
specified prior conviction.
c) AB 1525 (Allen), Chapter 632, Statutes of 2012, requires
money transmitters to provide their contracted agents with
training materials on recognizing and responding to elder
or dependent adult financial abuse by April1, 2013, and
annually thereafter.
d) AB 332 (Butler), Chapter 366, Statutes of 2011,
increased the fines for fraud, embezzlement, theft, and
identity theft against an elder or dependent adult when the
amount taken is more than $950.
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e) AB 1293 (Blumenfield), Chapter 371, Statutes of 2011,
authorizes prosecutors to petition for forfeiture of assets
in specified cases involving financial abuse of elder or
dependent adults.
REGISTERED SUPPORT / OPPOSITION:
Support
California Senior Legislature (Sponsor)
California Association for Health Services at Home
California District Attorneys Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744