BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Carole Migden, Chair S
2005-2006 Regular Session B
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SB 1495 (Battin) 5
As Amended March 27, 2006
Hearing date: April 18, 2006
Penal Code
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IDENTITY THEFT WHERE THE VICTIM IS A MINOR
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 346 (Battin) - failed passage in Senate
Public Safety Committee
Support: 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
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SB 1495 (Battin)
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Opposition:None known
KEY ISSUES
EXISTING LAW (PENAL CODE SECTION 530.5 (a)) PROVIDES THAT ANY PERSON
WHO, WITHOUT CONSENT, USES THE PERSONAL IDENTIFYING INFORMATION OF
ANOTHER PERSON FOR ANY UNLAWFUL PURPOSE, INCLUDING TO OBTAIN GOODS,
SERVICES OR MEDICAL INFORMATION, OR ATTEMPTS TO OBTAIN SUCH THINGS,
IS GUILTY OF AN ALTERNATE FELONY-MISDEMEANOR, WITH A FELONY SENTENCE
OF 16 MONTHS, 2 YEARS OR 3 YEARS IN PRISON.
WHERE THE VICTIM OF THIS CRIME IS A MINOR, SHOULD THE TERM FOR THE
FELONY BE INCREASED TO A PRISON TERM OF 2, 3 OR 4 YEARS?
SHOULD THE INCREASED PENALTY FOR IDENTITY THEFT WHERE THE VICTIM IS
A MINOR BE PLACED IN A STAND-ALONE SECTION?
PURPOSE
The purpose of this bill is to provide that where a defendant
commits the alternate felony- misdemeanor of using another
person's identity to obtain goods, services or medical
information and the victim is a minor, the punishment for the
felony shall be a prison term of 2, 3 or 4 years.
Existing law generally defines theft as the taking of the
property of another with the intent to permanently deprive the
owner of the property. (Pen. Code 484.)
Existing law provides that grand theft is committed when the
property taken is valued in excess of $400, except as specified.
(Pen. Code 487, subd. (a).)
Existing law provides, with specified exceptions, that grand
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theft is an alternate felony-misdemeanor, punishable by
imprisonment in county jail for not more than one year, a fine
of up to $1000, or both, or by imprisonment in a state prison
for 16 months, 2 or 3 years and a fine of up to $10,000. (Pen.
Code 489.)
Existing law provides that petty theft (generally theft of
property with a value of $400 or less is a misdemeanor,
punishable by a fine not exceeding $1000, imprisonment in the
county jail not exceeding six months, or both. Theft not
exceeding $50 in value can be prosecuted as an infraction of a
misdemeanor where the defendant has not previously been
convicted of theft or a theft-related crime. (Pen. Code 488,
490 and 490.1.)
Existing law includes the alternate felony-misdemeanor of
receiving stolen property (of any value). A prosecutor can
charge receiving stolen property as a straight misdemeanor where
the value of the property does not exceed $400. (Pen. Code
496.)
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 $1000, 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 includes a number of theft crimes and provisions
concerning access cards and access card accounts. (Pen. Code
484d, 484e, and 484j.)
Existing law provides that a person who, intending to deceive,
manufactures, sells, et cetera, a purported birth or baptismal
certificate, is guilty of an alternate felony-misdemeanor. Any
person who possesses a birth or baptismal certificate
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(counterfeit or genuine) with the intent to conceal his or her
identity or to represent himself or herself as the person named
in the document is guilty of a misdemeanor. (Pen. Code 529a.)
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 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 1 year in
the county jail, a fine of up to $1000, or both, or by
imprisonment in state prison for 16 months, 2 years or 3 years
and a fine of up to $10,000. (Pen. Code 530.5.)
Existing law provides that possession or retention of the
identifying information of another person with the intent to
defraud is a misdemeanor, punishable by imprisonment in a county
jail for up to 1 year, a fine of up to $1000, or both. Where
the victim is a deployed member of the military (armed forces or
reserves), the maximum fine is $2000. (Pen. Code 530.5, subd.
(d).)
Existing law defines "personal identifying information" thusly:
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
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
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representation.
Unique electronic data: (electronic) identification number,
address, or routing code, telecommunication identifying
information or access devices. (Pen. Code 530.5, subd.
(b).)
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. A
person convicted of felony conspiracy to commit identity theft
can be fined up to $25,000. (Pen. Code 182.)
Existing law provides that where the victim of identity theft
(involving the improper use of identifying information to obtain
goods et cetera) is an elder or dependent adult, and the amount
of loss exceeds $400, the crime is an alternate
felony-misdemeanor, with a felony penalty of 2, 3, or 4 years
in prison. (Pen. Code 368, subds. (d)-(e).)
This bill creates a new form of the alternate felony-misdemeanor
of use of another's personal identifying information to obtain
goods, services or medical information where the victim is a
minor. The only element that is different in the new crime is
the age of the victim.
This bill provides that the felony penalty for the new form of
identity theft is 2, 3, or 4 years in prison.
COMMENTS
1. Need for This Bill
According to the author:
Identity thieves are increasingly targeting children
- the thieves are parents, family members and
strangers. Currently, child identity theft makes up
4% of the total identity theft complaints. In 2003,
6,512 identity theft reports were filed on behalf of
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victims under 18 years old. Last year, the number
was 11,601. The Identity Theft Resource Center
estimates that two-thirds of child identity theft
cases involve relatives.
Children are an ideal target because a child's social
security number is often not used until the child
reaches their teens, at which point the damage is
already done. MSNBC.com's, The Red Tape Chronicles,
reported on the problem in a February 10, 2006
article, Do you know where your child's SSN is?
After this article was posted, 43 readers responded,
below are three from California in summary.
San Diego, CA
Son's SSN number was used by another student for
school/insurance purposes.
Fountain Valley, CA
Employee with a health insurance company, staff sees
duplicate SSN frequently, their only recourse is to
call the subscribers and inform them about the
duplicate entry and encourage them to contact their
local Social Security Office.
Southern CA
Parents used her husband's SSN to get a telephone
line when he was a child in the 80s and did not pay
his bill. To date the issue has not been resolved
and the couple has a phone line under her maiden
name.
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Under all circumstances of identity theft the victim
is put into a difficult situation - this situation is
made worse when the victim is a child and even more
difficult when the offender is a parent. Parental
identity theft is a tough crime for authorities to
prosecute. Once the victim becomes of age, most
young adults know it is wrong and realize the
ramifications of what has been taken from them. But,
the perpetrator is still a parent and the
parent-child bond often prevents the child from
filing a complaint. The child may feel guilty about
prosecuting their own parent, especially if the
parent used the accounts or money to purchase items
for the child or provide other benefits for the child
such as cable TV, electricity, or cell phones.
2. Related Bill - SB 1387 (Poochigian) Creates a Two-Year
Enhancement (not a separate crime) where the Victim of
Fraudulent Use of Another's Identifying Information or
Possession of Identifying Information with Intent to Defraud
was a Minor
SB 1387 (Poochigian) - also before this Committee on April 18,
2006 - defines a new two-year sentence enhancement that applies
where the defendant is convicted of identity theft and the
victim was a minor, a senior (65 years or older), a dependent
adult or a member of the armed services. This bill (SB 1495)
defines a new crime that includes all of the elements of use of
personal information to obtain goods, services or medical
information, with the additional element that the victim is a
minor.
The new offense defined by this bill is an alternate
felony-misdemeanor, with a prison triad (lower, middle or upper
term) of 2, 3 or 4 years. Under existing law, the prison triad
for other forms of identity theft is a prison term of 16 months,
2 years or 3 years. (However, when charged under Penal Code
Section 368 - elder abuse - identify theft where the victim is
an elderly person or dependent adult can be punished with a
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prison term of 2, 3, or 4 years. Effectively, this bill
enhances the punishment for identity theft where the victim is a
minor by one year for each of the lower, middle or upper term.
Unlike SB 1387, this bill does not increase punishment where the
defendant did not actually use the victim's personal identifying
information to obtain goods or services, but rather possessed or
retained the information with the intent to defraud. As such,
SB 1387 has a broader application and imposes greater penalties
in comparison with this bill. (SB 1387 would also make the
existing crime of possession of identifying information with
intent to defraud an alternate felony-misdemeanor.)
It can be argued that creating a new crime for identity theft
against minors could cause problems in the development of the
law in future years. In a common law jurisdiction such as
California, the law develops through appellate decisions over
time. Where parallel forms of identity theft are separately
defined as crimes depending on the status of the victim, each
form of identity theft can develop separately over time. This
can cause confusion for defendants, victims, attorneys and the
courts. Fewer such problems arise where additional penalties
are imposed because of the status of the victim through
enhancements, as the underlying crimes do not change over time
for each class of victim. Further, the Legislature may amend
one crime and not another, exacerbating any confusion from the
proliferation of crimes. (Problems and confusion have arisen
from the existence of parallel provisions concerning special
penalties for crimes against the elderly and dependent persons
that are found in separate codes.)
WHERE ADDITIONAL PENALTIES BASED ON THE STATUS OF THE VICTIM ARE
PRESCRIBED THROUGH THE CREATION OF SEPARATE CRIMES, RATHER THAN
THROUGH ENHANCEMENTS OF SENTENCE FOR A SINGLE UNDERLYING CRIME,
CAN CONFUSION AND CONFLICTS ARISE OVER TIME?
3. Policy Issues Raised by Prescribing Higher Penalties for
Identity Theft against Minors as Compared to Identity Theft in
which the Victim is an Adult
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It can be argued that minors are less vulnerable to financial
losses due to identity theft than adults because they typically
have less to lose. An adult with children to support may be
particularly hard-hit by identity theft. An adult may have
great difficulty obtaining home loans and mortgage lines of
credit, sources of funds that are particularly important in
today's economy. The adult may not know his or her identity has
been stolen and his or her credit ruined until a crisis causes
him or her to seek a loan.
The major harm to a minor may be harm to credit and other
problems, although the problems created by identity theft can be
very substantial. Arguably, a minor's lack of resources subject
to loss could partially offset the harm caused to the person's
credit upon reaching adulthood. As such, a minor is arguably no
more vulnerable than an adult victim of identity theft.
SHOULD A SEPARATE ALTERNATE FELONY-MISDEMEANOR OF IDENTITY THEFT
BE DEFINED FOR CASES IN WHICH THE VICTIM IS A MINOR, AND SHOULD
THIS CRIME HAVE A HIGHER PENALTY?
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