BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1829 (Cook) 9
As Introduced February 11, 2010
Hearing date: June 15, 2010
Military & Veterans Code; Penal Code
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FRAUDULENT USE OF MILITARY DECORATIONS AND AWARDS
HISTORY
Source:Vietnam Veterans of America, California State Council
Prior Legislation: AB 282 (Cook) - Ch. 360, Stats. 2007
AB 787 (DeVore) - Ch. 457, Stats. 2006
Support: American Legion, Department of California; AMVETS
(American Veterans), Department of California; Crime
Victims Action Alliance
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE FALSE REPRESENTATION OF HAVING BEEN AWARDED ANY
MILITARY DECORATION BE A MISDEMEANOR IN THE PENAL CODE INSTEAD
OF AN INFRACTION IN THE MILITARY AND VETERANS CODE, AS
SPECIFIED?
PURPOSE
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The purposes of this bill are to 1) elevate to a misdemeanor an
existing infraction that is committed where a person
fraudulently claims to have been awarded a military decoration,
and 2) place this crime, now defined in the Military and
Veterans Code, in the Penal Code within a section defining a
related crime.
Existing law provides that any person who, with intent to
defraud, falsely claims to have been awarded any military
decoration is guilty of an infraction. (Mil. & Vet. Code
648.1, subd. (a).) A "military decoration" is any decoration
or medal from the Armed Forces of the United States, the
California National Guard, State Military Reserve or Naval
Militia, or any service medals or badges awarded to the members
of such forces, or the ribbon, button, or rosette of any such
item, or any colorable imitation of such item. (Mil. & Vet.
Code 648.1, subd. (b).)
Existing law provides that any person who falsely represents
himself or herself to be a veteran or ex-serviceman of any war
in which the United States was engaged, in connection with the
soliciting of aid or the sale or attempted sale of any property,
is guilty of a misdemeanor. Solicitations of under $10 are
excluded from this crime. (Pen. Code 532b, subd. (a).)
Existing law states that any person who, with intent to defraud,
falsely claims, or presents himself or herself, to be a veteran
or member of the Armed Forces of the United States is guilty of
a misdemeanor. (Pen. Code 532b, subd. (b).)
Existing law provides that any person who willfully wears or
uses the badge, button, rosette, or other recognized insignia
of a specified veterans' organization, is guilty of a
misdemeanor, unless the wearer need not obtain the permission of
the organization. For a first conviction, this crime is
punishable by imprisonment not to exceed 30 days in a county
jail or a fine not to exceed $500. Upon a second conviction,
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the defendant is punishable by imprisonment in a county jail for
up to six months; a fine of up to $1,000, or both. (Mil and
Vet. Code 1820.)
This bill defines the following infraction, currently set out in
Military and Veterans Code Section 648.1 as a misdemeanor: Any
person who, orally or in wiring, or by wearing any military
decoration, falsely represents that he or she has been awarded
any military decoration, with intent to defraud, is guilty of a
[public offense]."
This bill incorporates into Penal Code Section 532b the
following definition of "military decoration" that currently
appears in Military and Veterans Code Section 648.1: Any
decoration or medal from the Armed Forces of the United States,
California National Guard, State Military Reserve, or Naval
Militia, or any service medals or badges awarded to the members
of those forces, or the ribbon, button, or rosette of that
badge, decoration, or medal, or any colorable imitation of that
item.
This bill repeals Military and Veterans Code Section 648.1 and
places the provisions of that section in an existing section of
the Penal Code (Pen. Code 532b) that concerns fraudulent
claims of military service in connection with soliciting aid or
selling property.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
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2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house,
(Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, California "spends more on corrections
than most countries in the world," but the state
"reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
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postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The crime of fraudulently misrepresenting one's
military record to defraud others is utterly
reprehensible. It pleased me to put AB 282 on the
books in 2007, but punishing this type of crime by
issuing an infraction doesn't go far enough. This
bill is necessary to protect the dignity and honor of
the men and women who have served honorably in the
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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United States Armed Forces.
The penalty under current law for fraudulently wearing
or claiming receipt of a military decoration is too
lenient. As it stands today, such crimes are
considered an infraction within the Military and
Veterans Code. The intent of this legislation is to
strengthen existing law by making this crime a
misdemeanor.
This bill would provide that it is a misdemeanor for a
person to, orally, in writing, or by wearing, as
defined, falsely represent himself or herself to have
been awarded any military decoration. This bill would
exempt face-to-face solicitations involving less than
$10.
2. Intent to Defraud is an Element of the Crime Considered by
This Bill
As defined by this bill, the crime of falsely claiming to have
been awarded a military decoration or falsely wearing military
decorations includes an element that the defendant intended to
defraud. As defined in standard California jury instructions,
to defraud generally means "to deceive another person [so as to]
either to cause a loss of money, goods, or services, or
something else of value, or to cause damage to, a legal,
financial, or property right." (CALCRIM 1900.)
It thus appears that a person is not guilty of fraudulently
claiming to be a decorated veteran or fraudulently wearing
military decorations if he or she merely acts out of
self-aggrandizement. Further, this bill excludes from its reach
circumstances where a person essentially panhandles (for amounts
of less than $10) by claiming to be a decorated veteran.
3. Punishment and Proportionality Issues
Comparison between the Crime Considered by this Bill and the
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Existing Misdemeanor of Fraudulently Claiming Veteran Status
As noted above, this bill essentially takes an existing
infraction that is defined in the Military and Veterans Code,
raises the crime to a misdemeanor and moves the offense to a
Penal Code Section 532b, which defines two similar misdemeanors.
One crime defined by Penal Code Section 532b is committed where
a person fraudulently claims to be a war veteran in connection
with solicitation of aid or in the sale of any property. The
other is committed where a person fraudulently pretends to be a
veteran or an active duty military member, regardless of any
claim of service during war.
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Arguably, the act of fraudulently claiming to be a decorated
veteran is more egregious than simply claiming to be veteran,
per se. It could be argued that existing law arguably violates
the principle of proportionately, in that the law more severely
punishes the less egregious crime. Further, existing law
includes a misdemeanor, with minimum jail terms, for falsely
wearing an insignia of a veterans' organization. That is also
arguably a less egregious act than falsely claiming to have
earned a military decoration. (Mil. & Vet. Code 1820.)
Double Punishment and Conviction Rules
Where a defendant falsely claimed to be a veteran and to have
been awarded a military decoration in connection with a single
transaction, such as solicitation for a donation of money, the
defendant could perhaps be convicted of two crimes. That is,
claiming to be a veteran and claiming to have been awarded a
military decoration or award can be said to be separate acts.
However, it appears that the defendant could only receive a
single punishment. Arguably, the defendant had a single purpose
- to obtain money or other benefit by claiming status as a
veteran. A defendant who commits more than one crime in a
single transaction and for a single purpose can only receive one
punishment. (Pen. Code 654)
Also, it can be argued that where a defendant (who is not a
veteran) fraudulently claims to have been a decorated veteran,
the offense of fraudulently claiming to be veteran would
essentially merge with the offense of claiming to be a decorated
veteran as a lesser included offense. A lesser included offense
is an offense that is necessarily committed when one commits the
greater offense. That is, the defendant could claim that the
offenses of claiming to be a veteran and claiming to be a
decorated veteran must be considered a single crime, resulting
in only a single conviction. (People v. Pearson (1986) 42
Cal.3d 351, 355.)
However, it does appear that a person who is in fact a veteran
could be convicted of fraudulently claiming to have been awarded
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a military decoration. Double conviction and punishment issues
would not apply in such a case.
Concerns that Veterans may be particularly likely to be
Prosecuted for Fraudulently Claiming to have earned a Medal or
Award
A veteran who falsely claims to have been awarded a military
decoration or award could apparently be prosecuted under the
existing Military and Veterans Code infraction and the
misdemeanor considered by this bill.
The California Attorneys for Criminal Justice have argued that
many veterans - who may be homeless, mentally ill or both - may
claim to have earned medals as part of a solicitation for money.
Similar concerns, but about claims of veteran status per se,
were raised when this Committee heard AB 787 (DeVore) in 2007.
AB 787 was amended to exempt cases where the person claiming to
be a veteran status solicited no more than $10 in a face-to-face
encounter.
As to this bill, a person who actually did previously serve in
the military could be subject to prosecution if he or she
falsely claims to have earned a medal or decoration. It could be
argued that this is a less egregious act than the claim by a
person who never served in the military at all claims to have
earned a medal. As noted by CACJ, and as noted by many in
connection with bills that would allow courts to provide
treatment for mentally ill veterans charged with crimes, many
veterans could be homeless and mentally ill. Perhaps the bill
could be amended to provided that where a veteran falsely claims
to have earned a military award of decoration, the offense could
be treated as an infraction or misdemeanor.
SHOULD THE EXISTING MILITARY AND VETERANS CODE INFRACTION OF
FRAUDULENTLY CLAIMING TO HAVE RECEIVED A MILITARY DECORATION BE
MADE A MISDEMEANOR AND PLACED IN A SECTION OF THE PENAL CODE
THAT DEFINES A MISDEMEANOR THAT IS COMMITTED WHERE A PERSON
FRAUDULENTLY CLAIMS TO BE VETERAN, PER SE?
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WHERE THE DEFENDANT SUBJECT TO PROSECUTION FOR FRAUDULENTLY
CLAIMING TO HAVE BEEN AWARDED A MILITARY DECORATION IS A
MILITARY VETERAN, SHOULD THE OFFENSE BE DEFINED AS AN ALTERNATE
MISDEMEANOR-INFRACTION?
4. Prior Related Legislation
AB 282 (Cook), Chapter 360, Statutes of 2007, created an
infraction for a person to falsely represent himself or herself,
verbally or in writing, to have been awarded any decoration or
medal from the Armed Forces of the United States, the California
National Guard, State Military Reserve, or Navel Militia; any
service medals or badges awarded to the members of such forces;
the ribbon, button, or rosette of any such badge, decoration or
medal; or, any colorable imitation of such item with the intent
to defraud.
AB 787 (DeVore), Chapter 457, Statutes of 2006, provided that
any person who falsely claims, represents or presents himself
or herself to be a veteran or member of the armed forces of the
United States with the intent to defraud, is guilty of a
misdemeanor. Face-to-face solicitations involving less than $10
are exempt from prosecution.
5. Existing Federal Laws on False Claims of Military Service
Federal law includes numerous crimes that are committed by a
person who falsely claims to be a veteran. Prominent offenses
are set out below:
Existing federal law mandates any person who, without authority,
wears the uniform or distinctive part thereof, or similar
apparel, of any of the armed forces of the United States or the
Public Health Service shall be fined or imprisoned for up to six
months. (18 USC 702.)
Existing federal law provides that any person who, with intent
to deceive, wears any military or official decoration of a
nation with which the United States is at peace, shall be fined
or imprisoned for up to six months. (18 USC 703.)
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Existing federal law provides that any person who knowingly
wears, manufactures, or sells any military decoration or medal
authorized by Congress, any service medals or badges the ribbon,
button, or rosette of any such badge, decoration or medal; or
any colorable imitation thereof, except when authorized, shall
be fined, imprisoned not more than six months, or both. If the
decoration or medal is a Congressional Medal of Honor, the
offender can be imprisoned not more than one year, fined, or
both. (18 USC 704(a) and 704(b)(1).)
Existing federal law provides that any person who knowingly
engages in commerce, as specified, involving a badge, medal,
emblem or other insignia of any veterans' organization
incorporated by enactment of Congress or of any organization
formally recognized by any such veterans' organization as an
auxiliary of such veterans' organization shall be fined under
this title, imprisoned not more than six months, or both. This
crime is also committed where the badge or insignia, as
specified, of a veterans' organization is reproduced on any
poster or publication, or where such matter is circulated,
except when authorized by the organization. (18 USC 705.)
6. Existing California Laws on Falsely Claiming to be a Peace
Officer or Fire Fighter or Official
This bill concerns false claims of military service. California
law includes crimes involving false claims that a person is a
peace officer, fire fighter or fire official. Major statutes
are described below:
Existing law states any person who unlawfully wears, exhibits,
or uses the uniform, insignia, emblem, device, label,
certificate, card or writing of an officer or member of a fire
department with fraudulent intent is guilty of a misdemeanor.
(Pen Code 538e, subd. (a).)
Existing law provides that any person who willfully wears,
exhibits, or uses the badge of a fire department or the Office
of the State Fire Marshal with intent to fraudulently
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impersonate an officer or member of a fire department or a
deputy state fire marshal, of fraudulently inducing the belief
that he or she is an officer or member of a fire department or a
deputy state fire marshal, is guilty of a misdemeanor,
punishable by up to one year in the county jail; by a fine not
to exceed $2,000; or by both. (Pen. Code 538e, subd. (b)(1).)
Existing law affirms that any person who willfully wears or uses
any badge that falsely purports to be an officer or member of a
fire department or a deputy state fire marshal, or which
resembles the authorized badge so as to deceive an ordinary
reasonably person into believing that it is authorized for the
use of one who by law is given the authority of an officer or
member of a fire department or a deputy state fire marshal, for
the purpose of fraudulently impersonating an officer or member
of a fire department or a deputy state fire marshal, or of
fraudulently inducing the belief that he or she is an officer or
member of a fire department or a deputy state fire marshal, is
guilty of a misdemeanor, punishable by up to one year in the
county jail; by a fine not to exceed $2,000; or by both. (Pen.
Code 538e, subd. (b)(2).)
Existing law provides that any person who willfully wears,
exhibits, or uses; who willfully makes, sells, loans, gives; or
transfers to another any badge, insignia, emblem, device, or any
label, certificate, card, or writing, which falsely purports to
be authorized for the use of one who by law is given the
authority of an officer or member of a fire department or a
deputy state fire marshal, or which so resembles the authorized
badge, insignia, emblem, device, label, certificate, card, or
writing of an officer or member of a fire department or a deputy
state fire marshal as would deceive an ordinary reasonable
person into believing that it is authorized for use by an
officer or member of a fire department or a deputy state fire
marshal, is guilty of a misdemeanor, except when any person who
makes or sells any badge under the circumstances described in
this subdivision is guilty of a misdemeanor, punishable by a
fine not to exceed $15,000. (Pen. Code 538e, subd. (c).)
Existing law provides that any person who, for the purpose of
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selling, leasing or otherwise disposing of merchandise, supplies
or equipment used in fire prevention or suppression, falsely
represents, in any manner whatsoever, to any other person that
he or she is a fire marshal, fire inspector or member of a fire
department; or that he or she has the approval, endorsement or
authorization of any fire marshal, fire inspector or fire
department, or member thereof, is guilty of a misdemeanor.
(Pen. Code 538e, subd. (d).)
Existing law expresses that any person who unlawfully wears,
exhibits, or uses the uniform, emblem, insignia, or card of a
peace officer with fraudulent intent is guilty of a misdemeanor.
(Pen. Code 538d, subd. (a).)
Existing law punishes any person who wears, exhibits, or uses
the badge of a peace officer with fraudulent intent is guilty of
a misdemeanor, punishable by up to one year in the county jail;
by a fine not to exceed $2,000; or by both. (Pen. Code 538d,
subd. (b)(1).)
Existing law provides that any person who wears, exhibits, or
uses any badge which falsely purports to be that of a peace
officer is guilty of a misdemeanor, punishable by up to one year
in the county jail; by a fine not to exceed $2,000; or by both.
(Pen. Code 538d, subd. (b)(2).)
Existing law states that the willful manufacture, sale, loan, or
transfer of any badge, emblem, insignia, or card falsely
purporting to be that of a peace officer is guilty of a
misdemeanor, punishable by up to six months in the county jail;
by a fine not to exceed $15,000; or by both. (Pen. Code 538d,
subd. (c).)
7. Existing California Statutes on False Personation, Identity
Theft and Fraud
This bill considers specific forms of fraud involving a person's
false claims of military service or a person's false claim of
receiving a military decoration. California law includes crimes
that are committed where the perpetrator assumes the identity of
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another person. These crimes generally involve subjecting the
victim to some specified harm or loss. California law also
provides that obtaining goods or service through fraud
constitutes is guilty of theft. The major statutes are as
follows:
Existing law mandates that any person who falsely personates
another, in either his or her private or official capacity, and
in such assumed character receives any money or property knowing
that it is intended to be delivered to the individual so
personated, with intent to convert the same to his or her own
use, that of another person, or to deprive the true owner
thereof, punishable in the same manner and to the same extent as
for larceny of the money or property so received. (Pen. Code
530.)
Existing law penalizes any 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, or medical
information in the name of the other person without the consent
of that person is guilty of a public offense, punishable by up
to one year in a county jail and/or a fine of up to $1,000, or
imprisonment in the state prison and/or a fine of up to $10,000.
(Pen. Code 530.5, subd. (a).)
Existing law punishes any person who knowingly and designedly,
by any false or fraudulent representation or pretense, defrauds
any other person of money, labor, or property, whether real or
personal, is punishable in the same manner and to the same
extent as for larceny of the money or property so obtained.
(Pen. Code 532, subd. (a).)
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