BILL NUMBER: AB 1219	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 19, 2002
	AMENDED IN SENATE  JUNE 25, 2002
	AMENDED IN ASSEMBLY  MAY 24, 2001
	AMENDED IN ASSEMBLY  MAY 10, 2001
	AMENDED IN ASSEMBLY  APRIL 5, 2001

INTRODUCED BY   Assembly  Members   Member 
Simitian  and Pescetti 
    (Principal coauthors:  Assembly Members Frommer and Pescetti)


                        FEBRUARY 23, 2001

   An act to amend  Sections 814, 815, 816, 950, 953, and 959
of, and to add Section 811 to,   Section 530.6 of 
the Penal Code, relating to criminal procedure.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1219, as amended, Simitian.  Criminal procedure:  identity.

   Existing law authorizes a person who reasonably believes that he
or she is a victim of identity theft to petition a court for an
expedited judicial determination of his or her factual innocence,
where the perpetrator of the identity theft was arrested for or
convicted of a crime under the victim's identity or where the victim'
s identity has been mistakenly associated with a record of criminal
conviction.  Existing law provides that a judicial determination of
factual innocence may be heard and determined upon material,
relevant, and reliable information submitted by the parties.
Existing law requires a court that determines the petitioner is
factually innocent to issue an order certifying the determination of
factual innocence.
   This bill would authorize the alleged victim of identity theft to
petition for, or the court, on its own motion or upon application of
the prosecuting attorney, to move for, an expedited judicial
determination of the factual innocence of an alleged victim of
identity theft, where the perpetrator of the identity theft was
arrested for, cited for, or convicted of a crime under the victim's
identity, or where a criminal complaint has been filed against the
perpetrator in the victim's name, or where the victim's identity has
been mistakenly associated with a record of criminal conviction.
This bill would also increase the sources upon which a determination
of factual innocence may be made to include material, relevant, and
reliable information ordered to be part of the record by the court.
This bill would authorize the court that has issued a finding of
factual innocence to order the name and associated personal
identifying information contained in court records, files, and
indexes accessible by the public deleted, sealed, or labeled to show
that the data is impersonated and does not reflect the defendant's
identity.  
   Under existing law, warrants of arrest are issued in the name of
the defendant, or in any name, if the actual name of the defendant is
unknown.  Under existing law, a person must be named in an
accusatory pleading to commence a prosecution, and fictitious or
erroneous names must be supplemented with true names, when they are
identified.
   This bill would define a corpus identity as a unique identifier
for a biologically or biometrically defined set of characteristics
sufficient to distinguish a person described by those characteristics
from any other person with reasonable certainty.  This bill would
allow a complaint or a warrant for arrest to be issued for a person
by name, corpus identity, or both.  This bill would provide for the
sufficiency of an accusatory pleading that uses only a corpus
identity or a corpus identity with a name.  This bill would also
require the addition of a true name, once identified, to any
accusatory pleading, whether the defendant was previously identified
by erroneous or fictitious name, by corpus identity, or by both an
erroneous or fictitious name and a corpus identity. 
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  no.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  
  SECTION 1.  Section 811 is added to the Penal Code, to read:
 
  SECTION 1.  Section 530.6 of the Penal Code is amended to read:

   530.6.  (a) A person who has learned or reasonably suspects that
his or her personal identifying information has been unlawfully used
by another, as described in subdivision (a) of Section 530.5, may
initiate a law enforcement investigation by contacting the local law
enforcement agency that has jurisdiction over his or her actual
residence, which shall take a police report of the matter, provide
the complainant with a copy of that report, and begin an
investigation of the facts or, if the suspected crime was committed
in a different jurisdiction, refer the matter to the law enforcement
agency where the suspected crime was committed for an investigation
of the facts.
   (b) A person who reasonably believes that he or she is the victim
of identity theft may petition a court  , or the court, on its
own motion or upon application of the prosecuting attorney, may move,
 for an expedited judicial determination of his or her factual
innocence, where the perpetrator of the identity theft was arrested
for   , cited for,  or convicted of a crime
under the victim's identity,  or where a criminal complaint has
been filed against the perpetrator in the victim's name,  or
where the victim's identity has been mistakenly associated with a
record of criminal conviction.  Any judicial determination of factual
innocence made pursuant to this section may be heard and determined
upon declarations, affidavits, police reports, or other material,
relevant, and reliable information submitted by the parties  or
ordered to be part of the record by the court  .  Where the
court determines that the petition  or motion  is
meritorious and that there is no reasonable cause to believe that the
 petitioner   victim  committed the
offense for which the perpetrator of the identity theft was arrested
 or   , cited,  convicted,  or subject
to a criminal complaint in the victim's name, or that the victim's
identity has been mistakenly associated with a record of criminal
conviction,  the court shall find the  petitioner
  victim  factually innocent of that offense.  If
the  petitioner   victim  is found
factually innocent, the court shall issue an order certifying this
determination.   The Judicial Council of California shall
develop a form for use in issuing an order pursuant to these
provisions.  A court issuing a determination of factual innocence
pursuant to this section may at any time vacate that determination if
the petition, or any information submitted in support of the
petition, is found to contain any material misrepresentation or
fraud.  
   (c) After a court has issued a determination of factual innocence
pursuant to this section, the court may order the name and associated
personal identifying information contained in court records, files,
and indexes accessible by the public deleted, sealed, or labeled to
show that the data is impersonated and does not reflect the defendant'
s identity.
   (d) A court that has issued a determination of factual innocence
pursuant to this section may at any time vacate that determination if
the petition, or any information submitted in support of the
petition, is found to contain any material misrepresentation or
fraud.
   (e) The Judicial Council of California shall develop a form for
use in issuing an order pursuant to this section.   
   811.  (a) For the purpose of this code:
   (1) "Corpus identity" means any unique alphanumeric that is
intended to reference a specific biometric symbol or biologic symbol
or copy thereof, contained on any record or in any file maintained by
any federal, state, or local law enforcement agency, laboratory, or
court.
   (2) "Biometric symbol" means any image or recording, produced by
the interaction of a person with an object, medium, instrument or
device, having sufficient characteristics so as to distinguish that
person, to a reasonable certainty, from all other persons.
   (3) "Biologic symbol" means any alphanumeric, analog or digital
signal, image, or representation that is caused or produced by a
chemical, mechanical, radiological, biological, or physical process
or analysis of fluid, cell, tissue, or waste product from a person,
having sufficient characteristics so as to distinguish that person,
to a reasonable certainty, from all other persons.
   (b) A complaint shall identify the defendant by name, by both name
and corpus identity, or by corpus identity.
   (c) A court, upon belief that the name listed on the complaint was
derived from the fraudulent assertion of another's identity by the
defendant, may strike that name from the complaint at any time and
without the defendant being present, provided that a corpus identity
for the defendant was listed on the original complaint, or a corpus
identity for the defendant is offered by the people.
   (d) A court, upon belief that the name listed on the complaint was
listed in error, may strike that name from the complaint at any time
and without the defendant being present, provided that a corpus
identity for the defendant is named on complaint, or a corpus
identity for the defendant is offered by the people.
   (e) Having stricken a name from a complaint pursuant to
subdivision (c) or (d), the court may, at any time thereafter and
without the defendant being present, amend the complaint to identify
the defendant by any name by which the person distinguished by the
corpus identity is believed to be known or by the corpus identity
offered by the people.
   (f) Having stricken a defendant's name from a complaint pursuant
to subdivision (c), the court may issue orders using the corpus
identity listed on the complaint to identify the defendant, unless
the defendant has been named on the complaint pursuant to subdivision
(e), in which case orders shall list both the defendant's name and
corpus identity.
   (g) A person, who uses the name of another during a detention or
arrest, may be identified in a subsequent complaint by a corpus
identity only.  Having received a complaint so filed, the court may:

   (1) Amend the complaint, at any time thereafter and without the
defendant being present, to identify the defendant by any name by
which the person distinguished by the corpus identity is believed to
be known.
   (2) Issue orders using the corpus identity listed on the complaint
to identify the defendant, unless the defendant has been named on
the complaint pursuant to paragraph (1), in which case orders shall
list both the defendant's name and corpus identity.
  SEC. 2.  Section 814 of the Penal Code is amended to read:
   814.  A warrant of arrest issued under Section 813 may be in
substantially the following form:
   County of ____
   The people of the State of California to any peace officer of said
State:
   Complaint on oath having this day been laid before me that the
crime of ____ (designating it generally) has been committed and
accusing ____ (naming defendant, corpus identity alphanumeric, or
both) thereof, you are therefore commanded forthwith to arrest the
above named defendant and bring him before me at ____ (naming the
place), or in case of my absence or inability to act, before the
nearest or most accessible magistrate in this county. 



     Dated at ________________ (place) this _______ day of ____,
20__.

             ______________________________________________________
               (Signature and full official title of magistrate.)
 
  SEC. 3.  Section 815 of the Penal Code is amended to read:
   815.  A warrant of arrest shall specify the name of the defendant
or, if it is unknown to the magistrate, judge, justice, or other
issuing authority, the defendant may be designated therein by any
name or corpus identity.  It shall also state the time of issuing it,
and the city or county where it is issued, and shall be signed by
the magistrate, judge, justice, or other authority issuing it with
the title of his office and the name of the court or other issuing
agency.
  SEC. 4.  Section 816 of the Penal Code is amended to read:
   816.  A warrant of arrest shall be directed generally to any peace
officer, or to any public officer or employee authorized to serve
process where the warrant is for a violation of a statute or
ordinance which such person has the duty to enforce, in the state,
and may be executed by any of those officers to whom it may be
delivered.
   When a warrant of arrest has been delivered to a peace officer and
the person named or identified by corpus identity in the warrant is
otherwise lawfully in the custody of the peace officer, the warrant
may be executed by the peace officer or by any clerk of a city or
county jail authorized to act and acting under the peace officer's
direction.
  SEC. 5.  Section 950 of the Penal Code is amended to read:
   950.  The accusatory pleading must contain:
   1. The title of the action, specifying the name of the court to
which the same is presented, and the names of the parties, although
the defendant may be identified by name, corpus identity, or both;
   2. A statement of the public offense or offenses charged therein.

  SEC. 6.  Section 953 of the Penal Code is amended to read:
   953.  When a defendant is charged by a fictitious or erroneous
name, by a corpus identity, or by both a fictitious or erroneous name
and a corpus identity, and in any stage of the proceedings his true
name is discovered, it must be inserted in the subsequent
proceedings, referring to the fact of his being charged by the name
or corpus identity or both mentioned in the accusatory pleading.
  SEC. 7.  Section 959 of the Penal Code is amended to read:
   959.  The accusatory pleading is sufficient if it can be
understood therefrom:
   1. That it is filed in a court having authority to receive it,
though the name of the court be not stated.
   2. If an indictment, that it was found by a grand jury of the
county in which the court was held, or if an information, that it was
subscribed and presented to the court by the district attorney of
the county in which the court was held.
   3. If a complaint, that it is made and subscribed by some natural
person and sworn to before some officer entitled to administer oaths.

   4. That the defendant is named, or if his name is unknown, that he
is described by a fictitious name or corpus identity, with a
statement that his true name is to the grand jury, district attorney,
or complainant, as the case may be, unknown.
   5. That the offense charged therein is triable in the court in
which it is filed, except in case of a complaint filed with a
magistrate for the purposes of a preliminary examination.
   6. That the offense was committed at some time prior to the filing
of the accusatory pleading.