BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair S
2005-2006 Regular Session B
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SB 346 (Battin)
As Introduced February 16, 2005
Hearing date: April 5, 2005
Penal Code
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IDENTITY THEFT -
USE OF A CHILD'S IDENTITYING INFORMATION BY A PARENT
HISTORY
Source: Identity Resource Center of San Diego
Prior Legislation: AB 425 (Poochigian) - 2003, held at Assembly
Desk
AB 1131 (Jackson) - Ch. 543, Stats. 2003
AB 1155 (Dutra) - Ch. 907, Stats. 2002
AB 1773 (Wayne) - Ch. 908, Stats. 2002
SB 1254 (Alpert) - Ch. 254, Stats. 2002
SB 125 (Alpert) - Ch. 493, Stats. 2001
AB 1949 (Hertzberg) - 2000, vetoed
AB 1897 (Davis) - Ch. 956, Stats. 2000
AB 1862 (Torlakson) - Ch. 632, Stats. 2000
AB 156 (Murray) - Ch. 768, Stats. 1997
SB 374 (Leslie) - Ch. 488, Stats. 1998
SB 245 (Wyland) - Ch. 478, Stats. 2001
SB 168 (Bowen) - Ch. 720, Stats. 2001
Support: Unknown
Opposition:None known
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KEY ISSUE
SHOULD THE PENAL CODE SECTION DEFINING IDENTITY THEFT - SECTION
530.5 - SPECIFICALLY PROVIDE THAT A PERSON CAN BE GUILTY OF IDENTITY
THEFT WHERE HE OR SHE USES THE IDENTIFYING INFORMATION OF HIS OR HER
CHILD TO UNLAWFULLY OBTAIN GOODS OR SERVICES?
PURPOSE
The purpose of this bill is to specifically provide that a
parent can be guilty of identity theft for unlawfully using the
identifying information of his or her child.
Existing law provides that any person who falsely impersonates
another person in his or her private or official capacity is
guilty of an alternate felony/misdemeanor. (Pen. Code 529.)
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 unlawfully obtain, or attempt to obtain, credit,
goods, or services in the name of the other person without
consent. This alternate felony/misdemeanor is punishable by up
to one year in the county jail, a fine of up to $1,000, or both,
or by imprisonment in state prison for 16 months, two years or
three years and a fine of up to $10,000. (Pen. Code 530.5.)
Existing law defines "personal identifying information" thus:
? Names, addresses and the like: Victim's name or address,
victim's mother's maiden name, place of employment, date of
birth.
? Identifying or associated numbers: Telephone, driver's
license, social security, employee identification, bank
account, credit card number, health insurance, taxpayer
identification, federal driver's license, school
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identification, account, PIN (personal identification number),
password, alien registration, passport.
? Unique biometric or similar data: Fingerprints, facial scans,
voiceprints, retina or iris images, other unique physical
representation.
? Unique electronic data: (Electronic) identification number,
address, or routing code, telecommunication identifying
information or access devices. (Pen. Code 530.5(b).)
Existing law provides that where a person has been convicted of
felony conspiracy to commit identity theft, the court can impose
a fine of up to $25,000. (Pen. Code 182, subd. (a)(6).)
Existing law provides that any person who agrees with another
person to commit a crime, or specified other acts, and takes any
overt act towards its commission is guilty of conspiracy,
punishable as the target crime or as an alternate
felony/misdemeanor. Any person who joins a conspiracy is guilty
of any crime committed by a co-conspirator in furtherance of the
conspiracy, regardless of whether the defendant was present at
that time or whether the crime was contemplated when the
original plan was made. Further, a conspiracy can be punished
more severely than the crime that is the intended goal of the
conspiracy. (People v. Morante (1999) 20 Cal.4th 403; People v.
Swain (1996) 12 Cal.4th 593; Pen. Code 182.)
Existing law provides that any person who obtains money,
property or services by means of false pretenses is guilty of
theft. (Pen. Code 532.)
Existing law provides that theft is the taking of property,
money or services with the intent to permanently deprive the
owner of the property, money or services. Theft of a value
exceeding $400 is grand theft, an alternate felony/misdemeanor.
With specified exceptions, such as for theft of agricultural
products, all other theft is petty theft, a misdemeanor. (Pen.
Code 484, 487, 488, 490.)
Existing law includes a special judicial process by which an
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identity theft victim can clear his or her name. The process
begins with the obtaining of a police report of an identity
theft or related crime. (Pen. Code 530.6.)
Existing law (Pen. Code 530.6) provides that a victim of
suspected identity theft may initiate a law enforcement
investigation and thereby obtain a police report to document the
fact of the theft. Further, the law enforcement agency shall
investigate the alleged crime, or shall refer the matter to the
appropriate law enforcement agency.
Existing law provides that a victim of identity theft may
petition the court for an "expedited" judicial determination of
factual innocence under the following circumstances and pursuant
to the following procedures:
? Where the perpetrator of the identity theft was convicted of a
crime under the victim's identity.
? Where the identity theft victim's name has been mistakenly
associated with a record of criminal conviction.
? Judicial determination of these issues shall be made after
consideration of declarations, affidavits, police report and
reliable information submitted by the parties.
? Where the court finds the petitioner factually innocent, the
court shall issue an order certifying that fact. (Pen. Code
530.6.)
Existing law requires the Department of Justice to maintain a
database for victims of identity theft so as to allow such
victims to document the crimes committed against them and to
assist them in clearing their names. Law enforcement agencies
may have access to the database. (Pen. Code 530.7.)
Existing law allows an identity theft victim to receive
information from credit card companies, financial organizations,
finance lenders providing consumer loans, utility companies and
commercial mobile radio companies about attempts by
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perpetrators' to use the victim's identity. (Pen. Code
530.8.)
Existing law (Pen. Code 530.8) specifically provides that a
possible identity theft victim who wishes to obtain information
about attempts to use his or her identity must present the
business or entity from which the information is sought with the
following:
A copy of a police report obtained pursuant to Penal Code
section 530.6.
The identifying information used to make the application under
scrutiny. (Pen. Code 530.8.)
Existing law provides that a credit card issuer, "a supervised
financial organization" or a consumer finance lender must comply
with a request for information by an identity theft victim, made
pursuant to Penal Code section 530.6, within 10 business days.
(Civ. Code 1748.95; Fin. Code 4402 and 22470.)
Existing law provides that any person who, with intent to
defraud, acquires, transfers or retains possession of another's
personal identifying information is guilty of an alternate
felony/ misdemeanor, and shall be punished by imprisonment in
the county jail for up to 1 year and/or a fine of up to $1,000.
(Pen. Code 530.5, subd. (d).)
Existing law provides that any person who alters, forges,
falsifies, duplicates, possesses or displays any driver's
license or government-issued identification, with the intent
that the document be used to facilitate or commit a forgery, is
guilty of forgery, an alternate felony/misdemeanor, punishable
by imprisonment in the county jail for up to 1 year and/or a
fine of up to $1,000, or imprisonment in the state prison for 16
months, 2 years or 3 years and a fine of up to $10,000. (Pen.
Code 470a and 470b.)
Existing law provides that any person who signs, passes, makes,
etc., any false or fictitious bill, check, or note with intent
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to defraud, or who alters any entry in a book of records with
intent to defraud, is guilty of forgery, an alternate
felony/misdemeanor, punishable by up to 1 year in the county
jail and/or a fine of up to $1,000, or by imprisonment in state
prison for 16 months, 2 years or 3 years, and a fine of up to
$10,000. (Pen. Code 470, 471, 473 and 476.)
Existing law states that a parent is entitled to the services
and earnings of an unemancipated minor child. (Fam. Code
7500.)
Existing law provides that "a parent, as such, has no control
over the property of the child." (Fam. Code 7502.)
Existing law provides that the employer of a child shall pay the
child's earning to the child unless and until the parent gives
the employer notice that the parent claims the earnings. The
parent may relinquish control of the child's earnings. (Fam.
Code 7503 and 7504.)
Existing law provides that a child can file a civil action (sue)
the parent for abuse of parental authority. In such an action
the child may be freed from the dominion of the parent. (Pen.
Code 7507.)
Existing law provides that minors "may make a contract in the
same manner as an adult, subject to the power of disaffirmance
?" (Civ. Code 1556.)
Existing law provides that "a contract of a minor may be
disaffirmed by the minor before majority [the age of 18] or
within a reasonable time afterwards ?" unless a statute
specifically prohibits disaffirmance of a minor's contract A
minor's heirs or personal representatives have this same right
upon the death of the minor. (Fam. Code 6710.)
Existing law (Fam. Code 6712) provides that a minor's contract
may not be disaffirmed if these circumstances are present:
The contract is for the reasonable cost of things necessary to
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support the minor or the minor's family.
The necessary items have actually been furnished to the minor
or the family.
Existing law provides detailed rules applicable to a minor's
contract for artistic or creative services, literary or musical
compositions, use of the minor's likeness or story in audio or
audio-visual works, or as an athlete. (Fam. Code 6750.)
Existing law provides that where a court approves a contract for
artistic, creative or athletic services as described in Family
Code section 6750, the contract is not subject to disaffirmance.
(Fam. Code 6752.)
Existing law provides that a minor is civilly liable for "wrong"
done by the minor, but in not liable for punitive damages.
(Fam. Code 6600.)
Existing law provides that a minor may enforce his or her civil
rights, except that a guardian must conduct the action or
proceedings. (Fam. Code 6601.)
This bill provides :
The crime of identity theft "shall apply to all persons
including a parent who willfully obtains personal
identifying information ? of his or her child, and uses
that information for any unlawful purpose, including to
obtain, or attempt to obtain, credit, goods, services, or
medical information in the name of the child without their
consent."
COMMENTS
1.Need for This Bill
According to the author:
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Children are being purposefully targeted because of
the lengthy time between the theft of the information
and discovery of the crimes. The major concern is
that if a parent or guardian misuses his or her
child's identity there will be no one to advocate for
the child.
Additionally, when a case is identified, a prosecutor
has a difficult time advocating for these children and
prosecuting their parents and guardians who
perpetrated identity theft.
This bill specifies in Penal Code section 530.5 that
it is illegal for parents to misuse their child's
identity for unlawful purpose, including obtaining
credit, goods, services or medical information in the
name of the child.
Identity theft resource centers and prosecutors are
seeing more and more of this type of identity theft:
The parent has destroyed his/her own credit or driving
record. Instead of repairing the damage done to his
or her own records, this parent begins to use the
information of the child he or she should be
protecting. This person may even convince himself or
herself that the bills will be paid on time and that
this action will not impact the child. Rarely does
this happen. Not only do these imposters not clean up
their own records, but they usually fall behind on the
bills under the "new" information.
SHOULD THE BILL ONLY REFER TO PARENTS, RATHER THAN PARENTS AND
GUARDIANS?
2. Issues Raised by Existing Law Concerning the Legal
Relationship Between a Parent and Child
This bill appears to state a relatively simple concept - a
parent can be guilty of identity theft for using the identifying
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information of a child to unlawfully obtain goods, services or
medical information. That concept is perhaps easy to apply
where a parent commits identity theft by using the identifying
information of an adult child. However, this concept may be
very difficult to apply where the parents used the identifying
information of a minor child.
Although issues of the legal rights and responsibilities of
parents and children are typically outside the jurisdiction of
this Committee, it is clear that parents have the responsibility
to care
for their children's physical needs. It further appears that
parents have at least a substantial ability to control a child's
financial matters. For example, a child's earnings are
considered the property of the parent.
The legal bases of the financial relationship between parent and
child are detailed and may be relatively settled. However, to a
non-expert the principles can be confusing or even
contradictory. A contract by child can be disaffirmed, and thus
most businesses would be very reluctant to enter into contracts
with minors unless the parents were principles on the contract.
However, a contract for items necessary to care for the minor or
the minor's family will be honored if the items have been
furnished. Would a prosecution for identity theft lie if a
parent made a contract in the name of the minor and then sought
to disaffirm the contract? How would such a case be proved?
For another example, a parent is entitled to claim the earnings
of a child. However, the law specifically provides that a
parent "has no control over the property of a child." (Family
Code 7500 and 7502.)
Parents commonly open savings accounts and other financial
instruments in the name of a child. Parents and children often
place money in such an account. The account can be used for
items a child wants to buy, or could be used to save for
college. It is unclear how this bill might affect such
arrangements.
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In any case of identity theft involving the use by a parent of a
child's identifying information, the case will very likely turn
on whether the obtaining of goods, services or information
"unlawful."
Arguably, nothing in this bill changes whether or not any
particular transaction by a parent in the name of a child was
unlawful. If appears that Legislative Counsel was of that
opinion in deeming this to be a non-fiscal bill. As a
non-fiscal bill, this bill would not be expected to increase
state costs for incarcerating convicted persons, despite the
fact that identity theft is an alternate felony/misdemeanor.
WHAT WOULD CONSTITUTE A PARENT UNLAWFULLY OBTAINING GOODS OR
SERVICES IN THE NAME OF THE CHILD?
UNDER WHAT CIRCUMSTANCES CAN PARENTS OBTAIN GOODS, CREDIT OR
INFORMATION IN THE NAME OF A CHILD?
WOULD THIS BILL MEAN THAT A PARENT WOULD BE REQUIRED TO OBTAIN
CONSENT FROM THE CHILD TO PURCHASE ANYTHING IN THE NAME OF THE
CHILD?
UNDER EXISTING LAW, WHERE A PARENT OBTAINS THE PROPERTY OR
CREDIT IN THE NAME OF A CHILD, AND THE PARENT DOES NOT INTEND TO
PAY FOR THE GOODS OR PAY THE CREDIT DEBT, DOES THAT CONSTITUTE
FRAUD?
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