BILL ANALYSIS
SB 226
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Date of Hearing: June 16, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 226 (Alquist) - As Amended: June 11, 2009
SUMMARY : Expands criminal jurisdiction for multiple offenses
of identity theft to any county where one of the identity theft
crimes occurred when the offenses involve the same defendant or
defendants, and the same scheme or substantially similar
activity. Specifically, this bill :
1)Provides that in the prosecution for multiple offenses of
identity theft involving the same defendant or defendants and
the same scheme or substantially similar activity that
occurred in multiple jurisdictions, the jurisdiction for all
those offenses, and for associated offenses connected together
in commission with an underlying identity theft offense, is in
any jurisdiction where at least one of the offenses occurred.
2)Requires the court to consider whether or not the identity
theft offenses involved substantially similar activity or the
same scheme when deciding whether or not a matter should
proceed in the county of filing or whether one or more counts
should be severed.
EXISTING LAW :
1)Mandates that charges arising under the identity theft law
(Penal Code 530.5) can be filed in the county where the theft
of the personal identifying information occurred, or the
county where the information was used illegally. Where
multiple identity theft crimes involving the same defendant
and the same victim occur in multiple jurisdictions, any one
of those jurisdictions is a proper jurisdiction for trial of
all charges. [Penal Code Section 786(b)(1).]
2)Requires courts to hold a hearing where multi-county identity
theft crimes involving the same defendants and the same victim
are filed in a single county, to determine if that county is
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the proper place for trial, or whether some charges should be
"severed" and filed in another county. The prosecutor shall
present evidence that the prosecutors in the other counties
where the crimes have occurred agree to prosecution in the
county where the case was filed. [Penal Code Section
786(b)(2).]
3)Necessitates in actions for unauthorized use, retention, or
transfer of personal identifying information are filed in the
county in which the victim resided at the time the offense was
committed, and no other basis for the jurisdiction applies,
the court, upon its own motion or the motion of the defendant,
shall hold a hearing to determine whether the county of the
victim's residence is the proper venue for trial of the case.
In ruling on the matter, the court shall consider the rights
of the parties, the access of the parties to evidence, the
convenience to witnesses, and the interests of justice. [Penal
Code Section 786(b)(3).]
4)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. (Penal Code Section 529.)
5)Creates 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. [Penal Code Section
530.5(a).]
6)Defines "personal identifying information" as the 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 an 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; and the following identifying numbers:
telephone, health insurance, credit card, taxpayer
identification, school identification, state or federal
driver's license, state or federal identification number,
Social Security number, employee identification number,
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professional or occupational, demand deposit account, savings
account, checking account, personal identification number or
password, alien registration, government passport, or any form
of identification that is equivalent to those listed above.
(Penal Code Section 530.55.)
7)States 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. [Penal Code Section 530.5(b)(3).]
8)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, 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, sells,
transfers, or conveys that personal identifying information
shall be punished by a fine; by both a fine and imprisonment,
or by imprisonment in the state prison. [Penal Code Section
530.5(d).]
9)Mandates that a person who believes that he or she is the
victim of identity theft may initiate an investigation of the
matter by contacting the law enforcement agency with
jurisdiction over the person's residence or place of business.
The victim may then obtain information from various financial
entities concerning the suspected identity theft incident and
may further investigate the matter, as specified. The victim
may petition a court for an expedited determination of his or
her factual innocence concerning misuse of his or her
identifying information. (Penal Code Section 530.6.)
10)Declares that the proper (territorial) jurisdiction - venue -
for a crime is in a court in the jurisdiction where the crime
was committed. (Penal Code Section 777.)
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11)Asserts that when a crime is committed in part in one county
(or other jurisdictional entity) and in part in another
county, the trial can be held in either county. (Penal Code
Section 781.)
12)Provides that multiple charges of rape, child abuse, spousal
abuse, sexual acts with children, or stalking that involve the
same defendant and victim but occurred in multiple
jurisdictions can be tried in any jurisdiction in which one of
the acts occurred. (Penal Code Section 784.7.)
13)Allows the trial for child abduction may be held in the
jurisdiction from which the child was taken, the jurisdiction
where the child is held, or the jurisdiction where the child
is found. (Penal Code Section 784.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Throughout the
state, high tech and large scale identity theft rings are on
the rise, taking a toll on society both emotionally and
fiscally.
"Today's identity thieves are orchestrating sophisticated
criminal schemes involving numerous victims in multiple
counties. These criminals go from county to county committing
various identity crimes against many different victims.
"Unfortunately, under existing law, prosecutors are not allowed
to combine all the counts against a particular defendant in a
scheme and try the counts together in one jurisdiction.
Prosecutors can only pursue cases involving the same victim or
that occurred in the prosecutors' home county.
"Under current law when there are multiple victims, either the
cases in other counties never get pursued or each individual
county of jurisdiction is forced to separately try each
individual crime.
"This means that many victims may never get the restitution to
which they are entitled or individual counties must conduct
separate investigations and trials. It also means that one
jury cannot hear all the counts against the thief. This
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ultimately works in the favor of the criminals rather than the
victims.
"The current process is costly both to the counties as well as
the state and many times the criminal is not held accountable
for each individual crime they commit.
"We need to give prosecutors every tool possible to effectively
protect every similarly situated victim whose information has
been stolen and assets have been pillaged in order to send a
deterrent to identity thieves."
2)Background : According to information provided by the author,
"Since identity thieves are more sophisticated today and these
crimes are on the rise, it is important that the county who
arrests the defendant have the ability to try the person on
all counts whether all the crimes were committed in one county
or multiple counties.
"Under existing law, prosecutors are not allowed to combine all
the counts against a particular defendant in a scheme and try
the counts together in one jurisdiction. Prosecutors can only
pursue cases involving the same victim or that occurred in the
prosecutors' home county."
3)Jurisdictional Expansion as a Result Technology Based Crime :
Identity theft is a generally detached crime because 85% of
perpetrators have no personal relationship with their victims.
[Synovate, Federal Trade Commission, Identity Theft Survey
Rep. (Nov. 2007) p.28.] Many incidents go unprosecuted
because they occur in large urban areas where there is a
magnitude of other crimes. [Assm. Com. on Pub. Safety,
Committee Analysis of Sen. Bill No. 612 (2007-2008 Reg. Sess.)
as amended Apr. 9, 2007, p. 4.] This geographic disconnect
between the impact and commission of the crime can leave
prosecutors in paralysis. (Ibid.) Authorities in the
victim's jurisdiction are often legally unable to prosecute in
that venue. Furthermore, authorities in the jurisdiction of
the commission of the crime may have too many pending cases,
or little incentive, to press charges because the citizens
they represent have been relatively unaffected by the crime
committed on their own soil. [See Ibid. (noting that the
impact of the crime is often felt in the locality of the
victim, where property concerns must be addressed).] As a
result, it is easy to see why identity theft is the fastest
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growing crime in the country. Last year alone, over 9.9
million Americans were victims of identity theft at a cost of
roughly $5 billion. [Synovate, Federal Trade Commission,
Identity Theft Survey Rep. (Sept. 2003) p.7.]
a) Subject Matter Jurisdiction : Subject matter
jurisdiction is the basic power of a court to hear a
particular type of case relating to a particular subject
matter. Under Article VI, section 10, of the California
Constitution, the superior court has "original jurisdiction
in all causes except those given by statute to other trial
courts." Subject matter jurisdiction cannot be waived or
conferred by the parties. A judgment entered in a court
without subject matter jurisdiction is void. [Griggs v.
Superior Court (1976) 16 Cal.3d 341, 344.] Superior courts
have jurisdiction over felony criminal matters. (Penal
Code Section 681.) Thus, any superior court in the state
has subject matter jurisdiction over an identity theft case
charged as a felony.
b) Territorial Jurisdiction : Territorial jurisdiction
bestows the power of a court to render a judgment
concerning events that have occurred within a well-defined
territory or venue. California Penal Code Section 777's
rule of territorial jurisdiction states that "except as
otherwise provided by law the jurisdiction of every public
offense is in any competent court within the jurisdictional
territory of which it is committed." (Penal Code Section
777.) However, when the Legislature makes an exception to
Penal Code Section 777, the statute is construed liberally
to match the legislative purpose of expanding criminal
jurisdiction. [Price v. Superior Court (2001) 25 Cal. 4th
1046.] In Price v. Superior Court, the California Supreme
Court held that the Legislature's power to designate venue
is limited by the requirement of a reasonable relationship
or nexus between the venue and the commission of the
offense. (Price v. Superior Court, supra, 25 Cal. 4th at
1075.)
The "contemporary right to trial by jury no longer
contemplates jurors who are familiar with the parties and
the locality and therefore are able to supply their own
personal knowledge." (Id. at 1052.) Venue, the location
where the trial is held, and vicinage, the area from which
a jury pool is drawn, although closely related, have
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different origins and purposes.
"Venue is historically significant from a national
perspective because . . . the pre-Revolutionary practice of
transporting colonists who were charged with crimes in the
colonies to either England or other English colonies for
trial was among the principal complaints of the colonists
against England. Objections to that practice led to the
inclusion of Article III, section 2 in the United States
Constitution. (Id. at 1054-55.) This section states, in
part, that "the Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury; and such Trial shall be held
in the State where the said Crimes shall have been
committed. (U.S. Const. art. III, Section 2, cl. 3.) The
Constitution did not specify any other geographic
requirements beyond state boundaries until the adoption of
the Sixth Amendment, which states that "in all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law."
(Id., 6th Amend.)
The California Constitution states that "trial by jury is an
inviolate right and shall be secured to all." (Cal. Const.
art. I, Section 16.) Although the California Supreme Court
failed to recognize this as an express vicinage right, the
court has repeatedly interpreted article I, section 16 of
the California Constitution to include an implicit vicinage
right. [See Price v. Superior Court, supra, 25 Cal. 4th at
1071 (acknowledging history of implicit vicinage rights in
article I, section 16 of the California Constitution).]
Departing from these previous assumptions, the Price Court
ruled that the vicinage clause in the Sixth Amendment does
not apply to California under the Fourteenth Amendment, and
there is no implicit vicinage right in the California
Constitution. (Id. at 1059.) Thus, under Price,
California is not bound to allow jury selection from the
county where the crime was committed. (Id. at 1060.)
For its reasoning the court looked at the timing and
enactment of the Federal Judiciary Act of 1789 and the Bill
of Rights. (Id. at 1061.) The Price Court concluded that
the concurrence of these doctrines was sufficient
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contextual evidence indicating that Congress intended
"district" to pertain to the federal judicial districts
then in existence and, accordingly, only in federal cases.
(Id. at 1061-62.) The federal judicial district lines
drawn by Congress coincided with state borders with the
exceptions of Massachusetts and Virginia, which were split
into two separate judicial districts. The Federal
Judiciary Act only mandates jury selection from the county
of the commission of the offense for capital crimes. (See
Federal Judiciary Act of 1789, 1 Stat. 88 Section 29.)
Finding no persuasive holdings in either federal or state
trials addressing the incorporation of the Sixth
Amendment's vicinage clause, the Price Court concluded that
there is no constitutional vicinage right to a jury trial
in the county of the commission of the crime. (Id. at
1075.)
4)Expanding Venue Following Price : In 2002, the Legislature
enacted AB 1173 (Wayne), Chapter 908, Statutes of 2002, which
allowed district attorneys to prosecute persons for the
unauthorized use of personal identifying information in the
county where the information was taken, or the county where
the information was used for an illegal purpose. [Assm. Bill
No. 1773 (2001-2002 Reg. Sess.).] SB 1773 flexed the
Legislature's power to designate venue conferred by the
decision in Price.
Defendants may now be tried in the victim's venue, potentially
far away from the locality of the commission of the offense.
This standard yields the possibility of criminal proceedings
in counties never before traversed, seen, or contemplated by
defendants. Unlike prior statutes, Penal Code Section
786(b)(2) does not require that defendants commit actions
requisite for accomplishing the offense in the county of such
proceedings.
Penal Code Section 786(b)(2) is the only statute that does not,
at a minimum, require that the defendant be apprehended in, or
commit at least part of the offense in, the county of the
venue of the trial. This section would seem to stretch the
boundaries of the reasonable relationship or nexus standard of
the Price holding because it challenges prior assumptions of
defendant rights. But under the Price holding, this venue
expansion is a valid use of the Legislature's power.
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This bill expands territorial jurisdiction by allowing venue to
be had in any county where the same defendant or defendants
commit identity theft crimes as part of a scheme or involve
substantially similar acts. Prosecutions of related cases
involving multiple victims in multiple counties present the
same types of problems that arise where crimes against a
single victim occur in multiple counties. Where a common
scheme is involved, evidence from each incident or crime is
typically admissible as to each offense. Requiring separate
prosecution in each county where related identity theft cases
occurred could result in presentation of the same evidence in
each county resulting in a waste of judicial, prosecution and
defense resources.
The current system is also problematic for defendants. A
defendant may be unable or unwilling to resolve an identity
theft case where he or she faces prosecutions in other
counties involving the same scheme. Under existing law, the
defendant and prosecutors may spend a great deal of time and
expense negotiating dispositions that reach across county
lines.
With the enactment Penal Code Section 786(b)(2) and Price
decision, this bill appears to be a natural progression in the
expansion of permissible venues for the consolidation of
offenses. The detached nature of identity theft is no match
against antiquated territorial jurisdiction statutes.
However, the Legislature must be careful that it is not putting
a greater burden on the defendant. The presumption of
innocence is a fundamental aspect of criminal hearings. This
aspect is preempted by this bill as the burden of travel is
automatically fixed upon the defendant or defendants before
the prosecution proves any culpability. Under this bill, an
innocent defendant could incur the same hardship to those
eliminated for victims of identity theft an unreasonable
burden if required to attend a trial hundreds of miles away.
5)Forum Shopping : There may be a concern that if this bill were
to pass that it would provide for jurisdiction of a criminal
action in identity theft cases in a multitude of counties.
Obviously, this would give prosecutors a choice of venues
where the crime could be prosecuted. It may be argued that
the choice would be in a county where prosecutors would obtain
a conviction.
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6)Out-of-State Identity Theft Jurisdiction : Penal Code Section
777 provides "that every person is liable to punishment by the
laws of this State for a public offense committed by him
therein." In other words, California law may only punish
offenses committed within the state's borders. This bill
gives trial jurisdiction for identity theft in any county in
which the victim resides, regardless of whether or not the
offense was committed outside California. In addition to
conflicting with the general jurisdictional statute above,
this bill raises state sovereignty issues in that California
would be able to prosecute a New York resident for a crime
committed entirely within the state of New York.
7)Argument in Support : According to the San Francisco City and
County District Attorney's Office , "Across the state, high
tech and large scale identity theft rings are becoming more
and more common. Identity thieves are orchestrating
sophisticated criminal schemes involving numerous victims in
different counties. In these schemes, too many offenders
escape accountability. Today, county prosecutors are limited
in our ability to pursue all of the crimes committed in these
complex schemes because we only have jurisdiction over those
crimes involving one victim or that occurred in the same
county. Without the ability to prosecute the entire criminal
scheme, victims in other counties may never get restitution
and may never get court-ordered absolution from crimes
committed by identity thieves in their names. Even if other
counties decide to prosecute the same offenders, the cost to
the criminal justice system for shipping offenders from county
to county to prosecute the same criminal scheme is enormous.
"SB 226 gives prosecutors jurisdiction to hold roving identity
thieves accountable for every crime committed in complex
identity theft schemes. Prosecutors should be able to
effectively protect every similarly situated victim whose
information is being stolen and assets are being pillaged,
regardless of the victims' counties of residence. This is
both cost-efficient and better for public safety."
8)Prior Legislation :
a) AB 1773 (Wayne), Chapter 908, Statutes of 2002, allows a
district attorney to prosecute a person for the
unauthorized use of personal identifying information in the
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county where the information was taken, or the county where
the information was used for an illegal purpose.
b) AB 2886 (Frommer), Chapter 522, Statutes of 2006,
creates new crimes related to identity theft for persons
previously convicted and for persons who sell the personal
identifying information of another person.
c) SB 612 (Simitian), Chapter 47, Statutes of 2008,
provides than when an action for unauthorized use,
retention, or transfer of personal identifying information
is filed in the county in which the victim resided at the
time the offense was committed, and no other basis for the
jurisdiction applies, the court, upon its own motion or the
motion of the defendant, shall hold a hearing to determine
whether the county of the victim's residence is the proper
venue for trial of the case. In ruling on the matter, the
court shall consider the rights of the parties, the access
of the parties to evidence, the convenience to witnesses,
and the interests of justice.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Insurance Companies
California Chamber of Commerce
California District Attorneys Association
California State Association of Counties
California Statewide Law Enforcement Association
Consumers Union
Crime Victims United of California
District Attorney, City and County of San Francisco
District Attorney, Los Angeles County
First Data Corporation
Peace Officers Research Association of California
Privacy Rights Clearinghouse
San Bernardino County Office of the Sheriff
Santa Clara County Board of Supervisors
Opposition
None
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Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744