BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 811 (John Perez)
As Amended June 16, 2009
Hearing date: July 14, 2009
Civil Code; Vehicle Code
JM:mc
CHECK CASHING BUSINESS:
IDENTIFICATION CARDS AND RELATED DOCUMENTS
HISTORY
Source: Author
Prior Legislation: AB 971 (Correa) - Ch. 17, Stats. 2004
AB 711 (Ackerman) - Ch. 369. Stats. 1997
SB 1959 (Calderon) - Ch. 682, Stats. 1996
AB 465 (Peace) - Ch. 327, Stats 1993
AB 2400 (Peace) - Ch. 1043, Stats. 1992
Support: California Immigrant Policy Center; Consumer Federation
of California
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
SHOULD A "CHECK CASHER" BE PROHIBITED FROM REQUIRING A PERSON TO
USE AN IDENTIFICATION CARD ISSUED BY THE CHECK CASHER?
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(CONTINUED)
SHOULD A CHECK CASHER BE PROHIBITED FROM SELLING ANY FORM OF
IDENTIFICATION OTHER THAN AN IDENTIFICATION CARD FOR USE ONLY AT
THAT PARTICULAR BUSINESS?
SHOULD THE PENALTY FOR MAKING A FALSE IDENTIFICATION THAT MIMICS AN
IDENTIFICATION ISSUED BY THE DEPARTMENT OF MOTOR VEHICLES (DMV) BE
INCREASED TO INCLUDE A JAIL TERM OF UP TO ONE YEAR, IN ADDITION TO A
MANDATORY FINE OF $1,000 AND MANDATORY COMMUNITY SERVICE OF AT LEAST
24 HOURS' TIME?
PURPOSE
The purposes of this bill are to 1) prohibit a "check casher"
from requiring a customer to use an identification card issued
by the check casher; 2) prohibit a check casher from selling any
form of identification other than a card for use only at that
business; and 3) provide that the penalties for making a false
DMV-style identification card, may include a jail term of up to
one year.
Check Cashing Businesses
Existing law defines a "check casher" as a person or entity that
for compensation engages, in whole or in part, in the business
of cashing checks, warrants, drafts, money orders, or other
commercial paper serving the same purpose. "Check casher" does
not include a state or federally chartered bank, savings
association, credit union, or industrial loan company. (Civ.
Code 1789.31.)
Existing law requires check cashers to obtain a permit from the
Department of Justice (DOJ). (Civ. Code 1789.37.)
Existing law allows a check casher to charge a fee of no more
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than $10 to set up an initial account and issue an optional
identification card for providing check cashing services. A
replacement identification card may be issued at a cost not to
exceed $5. (Civ. Code 1789.35(b).)
This bill prohibits a check casher from requiring a customer to
purchase a check cashing identification card to access services.
This bill prohibits check cashers from selling any other form of
identification other than what is permitted to access check
cashing services.
False Identification and Related Matters
Existing law provides that any person who falsely personates
another person in his or her private or official capacity is
guilty of an alternate felony-misdemeanor. False personation
generally involves subjecting the person whose identity was
assumed to prosecution, suit or to pay a debt. (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. (Pen.
Code 530.5, subd. (a).)
Existing law defines "personal identifying information" to mean
name, address, mother's maiden name, place of employment, date
of birth, unique biometric data including fingerprint, facial
scan identifiers, voiceprint, retina or iris image, or other
unique physical representation, unique electronic data including
information identification number assigned to the person,
address or routing code, telecommunication identifying
information or access device, information contained in a birth
or death certificate, following identifying numbers: telephone,
health insurance, credit card, taxpayer identification, school
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identification, state or federal driver's license, state or
federal identification number, social security, employee
identification number, professional or occupational, demand
deposit account, savings account, checking account, PIN or
password, alien registration, government passport, or any form
of identification that is equivalent to those listed above.
(Pen. Code 530.55.)
Existing law provides 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 provisions
proscribing identity theft, or who, with the intent to
defraud, acquires or retains possession of the personal
identifying information of 10 or more other persons, 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 state prison. (Pen. Code 530.5, subd.
(b)(3).)
Existing law provides that any person who, with intent to
defraud, sells, transfers, or conveys the personal identifying
information of another person 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 state prison.
Further, any person who, with actual knowledge that the
personal identifying information of a specific person will be
used in violation of identity theft provisions who sells,
transfers, or conveys that personal identifying information
shall be punished by a fine or by both a fine and imprisonment,
or by imprisonment in the state prison. (Pen. Code 530.5,
subd. (d).)
Existing law prohibits any person from manufacturing or selling
an identification document of a size and form substantially
similar to the identification cards or drivers' licenses issued
by the Department of Motor Vehicles. A violation of these
provisions is a misdemeanor, punishable by a fine of $1,000, "no
part of which shall be suspended." The convicted person "shall
[also] be required to perform not less than 24 hours of
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community service during hours when the person is not employed
and is not attending school." (Veh. Code 13004.1 and
14610.1.)
This bill enhances penalties for making false DMV-style
identification cards (in the form of a DMV identification card
or driver's license) to include a jail term of up to one year,
in addition to the mandatory penalties in current law of a
$1,000 fine and 24 hours of community service. The bill
specifies that no part of the community service may be suspended
or waived.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
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correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author's office:
Check cashers regularly sell identification cards so
that customers may be able to access services. This
practice is necessary if a customer has no other form
of identification, but some check cashing facilities
do coerce or compel people into purchasing
identification cards. These check cashing facilities
target non-English proficient people and advertise the
sale of identification cards to this vulnerable
population. There are even cases where they advertise
the sale of identification that they claim is a valid
California Identification Card or California Drivers
License. Since these facilities target non-English
proficient people, the consumers are misled into
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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purchasing fraudulent identification. This bill
removes any ambiguity in law by not permitting check
cashers to sell anything other than an optional
identification card intended to access service.
2. Previous Legislation in 2007 Increased Fines for Manufacturing
or Selling False Identification Cards that are Similar to DMV
Identification Cards and Driver's Licenses.
AB 1658 (Sharon Runner) Chapter 743, Statutes of 2007, increased
the mandatory fine for manufacturing false identification and
licenses from $500 to $1,000. The bill also required a
convicted defendant to perform 24 hours of community service
while the violator is not employed or attending school.
3. Background on Regulation of Check Cashing Businesses
California established the Check Casher Permit Program in 1995.
Check cashers are regulated by the Department of Justice (DOJ).
Check cashers, for a fee, cash checks, warrants, money orders or
similar commercial paper. The owner of a check cashing business
must obtain a permit from the DOJ. A check cashing business
must post for clear public viewing a complete, detailed and
unambiguous schedule of all fees for cashing checks, drafts,
money orders or other commercial paper and for the initial
issuance of any identification card. Customers must also be
able to clearly view a posted list of valid identification that
is acceptable in lieu of identification issued by the check
casher. The check casher law does not apply to state and
federally chartered banks, savings associations, credit unions
and industrial loan companies. Also excluded are retail stores
that may incidentally charge a fee not exceeding $2 to cash
checks or money orders as a service to customers.
Many customers of check cashing businesses do not have bank
accounts or drivers' licenses. To address this situation, check
cashers may distribute identification cards to customers. An
identification check casher includes a photograph, name,
address, sex, hair, eye color, height, weight, date of birth,
date issued, signature and right thumbprint. The addition of a
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social security number is optional.
It appears that one of the concerns presented or addressed by
this bill is that check cashers could issue identification cards
that recipients could attempt to use for a variety of purposes,
unrelated to cashing checks or at the check cashing business.
The bill is drafted in terms of selling identification cards
other than cards for use at the check cashing business. If the
author's intent is to prevent the use of check casher
identification cards for purposes other than for cashing checks,
the bill should also prohibit a check casher from "providing"
such forms of identification.
SHOULD THE BILL STATE THAT A CHECK CASHER SHALL NOT SELL OR
PROVIDE ANY IDENTIFICATION CARD OTHER THAN IDENTIFICATION TO BE
USED AT THAT PARTICULAR BUSINESS?
4. Court Discretion to Sentence a Defendant Convicted of Making
or Selling a False DMV-Style Identification to up to a Year in
Jail, in Addition to Mandatory Community Service and a Full
and Mandatory $1,000 Fine
The New Penalty Provision in the Bill
Existing law requires a court to order a defendant to perform at
least 24 hours of community service and to pay a full and
mandatory fine of $1,000 for making a DMV-style false
identification. This bill, in what is perhaps a redundant
provision, specifies that the court cannot stay any part of the
community service order. This bill also allows the court to
impose a jail term of up to one year, in addition to the
community service order.
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Community Service Generally
Allowing a court to impose a jail term in addition to community
service appears to be a novel penalty for a misdemeanor.
Typically, community service is ordered as an alternative to a
jail term. Community service is generally considered to be a
rehabilitative and restorative program. For example, an
underage person who purchased alcohol, or a person who provided
alcohol to an underage person, shall be ordered to perform
community service. This community service should be served in
an alcohol or drug treatment program or the coroner's office.
(Bus. & Prof. Code 25658, subd. (e)(1).) Clearly, such
service is designed to teach a defendant about the very serious
dangers of alcohol use, including addiction and fatalities. The
court can only impose a jail term on a defendant if he or she
provided alcohol to an underage person and the underage person
seriously injured or killed another person or the underage
person. The jail penalty provision does not include a community
service option for the court. (Bus. & Prof. Code 25658, subd.
(e)(3).)
The restitution provisions in Penal Code Section 1202.4 direct a
court to consider a community service order in an extraodinary
case where the defendant cannot afford to pay restitution. The
court, in granting probation to a minor who possessed etching
cream for the purpose of committing vandalism shall consider a
community service order as a condition of probation. (Pen. Code
594.1, subd. (e).) A minor who purchases or possesses tobacco
shall be ordered to pay a fine of $75 or perform 30 hours of
community service. (Pen. Code 308l, subd. (b).) On the other
hand, the sentencing court may order a grafitti defeNdant to
serve a jail term and to perform community service, buT only if
it is not feasible for the defendant to clean up the graffiti.
(Pen. Code 594, subd. (c).)
Suggestion to Include a Jail Term in a Series of Graduated
Sanctions
Perhaps the bill should describe or prescribe graduated
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sanctions, depending on the seriousness of the crime and other
relevant factors. 1) The court could order a defendant to pay
the mandatory fine and perform the community service, with no
other penalty. 2) The court could place the defendant on
probation, and order the defendant to pay the fine and perform
community service as a condition of probation. 3) If the
defendant fails to perform satisfactorily on probation, the
court may order additional community service, or impose a jail
term.
IN A CONVICTION FOR MAKING OR SELLING A FALSE DMV IDENTIFICATION
OR LICENSE, SHOULD THE APPLICABLE PENALTIES INCLUDE A
COMBINATION OF MANDATORY COMMUNITY SERVICE, A MANDATORY $1,000
FINE AND A JAIL TERM?
SHOULD THE BILL PROVIDE THAT A JAIL TERM COULD BE IMPOSED IN
LIEU OF COMMUNITY SERVICE, PARTICULARLY WHERE THE DEFENDANT
FAILED TO PERFORM COMMUNITY SERVICE AS A CONDITION OF PROBATION?
5. Identity Theft Issues as Concerns False DMV-Style
Identification Documents
Sections 3 and 4 of this bill increase the penalties for the
misdemeanor of making or selling a false identification document
that is in the form of a DMV identification card or driver's
license. Existing law also includes crimes for possessing or
transferring the personal identifying information of another
with intent to defraud or with actual knowledge that the
information would be used to commit identity theft.
Identity theft crimes can be committed through the use of false
DMV-style identification cards or documents. While the identity
theft crimes include an intent or knowledge element not included
in the false DMV document crime amended by this bill, a
defendant could argue that he or she can only be prosecuted for
the false DMV document offense if the card contains or reflects
the personal identifying information of another. Such an
argument would be made under the legal principle that when a
general statute and a specific statute cover the same conduct,
the more specific statute controls. (1 Witkin & Epstein (3d Ed.
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2000) Intro. to Crimes, 59-61.) It is thus suggested that
the bill be amended to include a provision that a person can be
prosecuted under the false DMV document statute or any other
provision of law.
SHOULD THE BILL INCLUDE A PROVISION THAT A DEFENDANT WHO
VIOLATES THE PROHIBITION ON MAKING OR SELLING A DMV-STYLE
IDENTIFICATION OR DRIVER'S LICENSE MAY BE PROSECUTED UNDER ANY
OTHER PROVISION OF LAW?
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