BILL ANALYSIS
SB 1087
Page 1
Date of Hearing: June 15, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1087 (Alquist) - As Amended: April 27, 2010
SUMMARY : Authorizes restitution for expenses for a time
reasonably necessary to make a victim whole to monitor an
identity theft victim's credit report and for the costs to
repair the victim's credit.
EXISTING LAW :
1)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.)
2)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).]
3)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 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 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,
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government passport, or any form of identification that is
equivalent to those listed above. (Penal Code Section
530.55.)
4)Punishes 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, with 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).]
5)Mandates 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. [Penal
Code Section 530.5(d).]
6)Allows 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.)
7)States legislative intent that a victim of crime who incurs
any economic loss as a result of the commission of a crime
shall receive restitution directly from any defendant
convicted of that crime. [Penal Code Section 1202.4(a)(1).]
8)Requires upon a person being convicted of any crime in the
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State of California, the court shall order the defendant to
pay a fine in the form of a penalty assessment. [Penal Code
Section 1202.4(a)(2).]
9)Allows the court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both
of the following:
a) A restitution fine; and,
b) Restitution to the victim or victims, if any, which
shall be enforceable as if the order were a civil judgment.
[Penal Code Section 1202.4(a)(3).]
10)Provides in every case where a person is convicted of a
crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary
reasons for not doing so, and states those reasons on the
record. [Penal Code Section 1202.4(b).]
11)Mandates that a restitution fine shall be set at the
discretion of the court and commensurate with the seriousness
of the offense, but shall not be less than $200, and not more
than $10,000, if the person is convicted of a felony, and
shall not be less than $100, and not more than $1,000, if the
person is convicted of a misdemeanor. [Penal Code Section
1202.4(b)(1).]
12)Directs the court in felony restitution fines, to determine
the amount of the fine as the product of $200 multiplied by
the number of years of imprisonment the defendant is ordered
to serve, multiplied by the number of felony counts of which
the defendant is convicted. [Penal Code Section
1202.4(b)(2).]
13)Asks courts to impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and
states those reasons on the record. A defendant's inability
to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine. Inability to pay may
be considered only in increasing the amount of the restitution
fine in excess of the $200 or $100 minimum. The court may
specify that funds confiscated at the time of the defendant's
arrest may be applied to the restitution fine if the funds are
not exempt for spousal or child support or subject to any
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other legal exemption. [Penal Code Section 1202.4(c).]
14)Necessitates in setting the amount of the fine in excess of
$200 or $100 minimum, the court shall consider any relevant
factors including, but not limited to, the defendant's
inability to pay, the seriousness and gravity of the offense
and the circumstances of its commission, any economic gain
derived by the defendant as a result of the crime, the extent
to which any other person suffered any losses as a result of
the crime, and the number of victims involved in the crime.
Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a
defendant's inability to pay may include his or her future
earning capacity. A defendant shall bear the burden of
demonstrating his or her inability to pay. Express findings
by the court as to the factors bearing on the amount of the
fine shall not be required. A separate hearing for the fine
shall not be required. [Penal Code Section 1202.4(d).]
15)Authorizes in every case in which a victim has suffered
economic loss as a result of the defendant's conduct, the
court shall require that the defendant make restitution to the
victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims
or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount
shall be determined at the direction of the court. The court
shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so, and states them on the
record. The court may specify that funds confiscated at the
time of the defendant's arrest be applied to the restitution
order if the funds are not exempt for spousal or child support
or subject to any other legal exemption. [Penal Code Section
1202.4(f).]
16)Demands the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim
and each loss to which it pertains, and shall be of a dollar
amount that is sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the
result of the defendant's criminal conduct, including, but not
limited to, all of the following [Penal Code Section
1202.4(f)(3)]:
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a) Full or partial payment for the value of stolen or
damaged property. The value of stolen or damaged property
shall be the replacement cost of like property, or the
actual cost of repairing the property when repair is
possible.
b) Medical expenses.
c) Mental health counseling expenses.
d) Wages or profits lost due to injury incurred by the
victim, and if the victim is a minor, wages or profits lost
by the minor's parent, parents, guardian, or guardians,
while caring for the injured minor. Lost wages shall
include any commission income as well as any base wages.
Commission income shall be established by evidence of
commission income during the 12-month period prior to the
date of the crime for which restitution is being ordered,
unless good cause for a shorter time period is shown.
e) Wages or profits lost by the victim, and if the victim
is a minor, wages or profits lost by the minor's parent,
parents, guardian, or guardians, due to time spent as a
witness or in assisting the police or prosecution. Lost
wages shall include any commission income as well as any
base wages. Commission income shall be established by
evidence of commission income during the 12-month period
prior to the date of the crime for which restitution is
being ordered, unless good cause for a shorter time period
is shown.
f) Noneconomic losses, including, but not limited to,
psychological harm, for felony sex offenses.
g) Interest, at the rate of 10% per annum, that accrues as
of the date of sentencing or loss, as determined by the
court.
h) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the
victim.
i) Expenses incurred by an adult victim in relocating away
from the defendant, including, but not limited to, deposits
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for utilities and telephone service, deposits for rental
housing, temporary lodging and food expenses, clothing, and
personal items. Expenses incurred pursuant to this section
shall be verified by law enforcement to be necessary for
the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional
well-being of the victim.
j) Expenses to install or increase residential security
incurred related to a crime, including, but not limited to,
a home security device or system, or replacing or
increasing the number of locks.
aa) Expenses to retrofit a residence or vehicle, or both, to
make the residence accessible to or the vehicle operational
by the victim, if the victim is permanently disabled,
whether the disability is partial or total, as a direct
result of the crime.
17)Provides that when the economic losses of a victim cannot be
ascertained at the time of sentencing, the court shall retain
jurisdiction over a person subject to a restitution order for
purposes of imposing or modifying restitution until such time
as the losses may be determined. Nothing shall be construed
as prohibiting a victim, the district attorney, or a court on
its own motion from requesting correction, at any time, of a
sentence when the sentence is invalid due to the omission of a
restitution order or fine without a finding of compelling and
extraordinary reasons pursuant to existing law. [Penal Code
Section 1202.46(f).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author of this bill,
"Every year an ever-growing number of Californians become
victims of identity theft. With changes in technology,
increasing amounts of personal identifying information
available electronically, and a souring economy, identity
theft is becoming a much more lucrative and sophisticated
crime. The result is not only more victims, but deeper and
more extensive victimization.
"It is increasingly common for victims of identity theft to
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suffer for years after the crime initially occurs. Victims'
personal identifying information is getting distributed for
use among many identity thieves. So even in cases where the
initial criminal is caught, the victimization does not
necessarily end. Today, victims must monitor and make
corrections to their credit histories for years after the
crime occurred.
"Victims deserve to have a specific right to restitution for
credit monitoring and repair for long after the crime
occurred. Credit repair costs and three years of credit
monitoring should be mandated as part of restitution to all
identity theft victims."
2)Background : According to information provided by the author,
"Identity theft is the fastest growing crime in the United
States. The Federal Trade Commission estimates as many as 9
million Americans have their identities stolen each year. In
2008, California ranked first in the country in total number
of complaints of identity theft and second when accounting for
population.
"With advances in technology, public and private databases
containing extensive personal identifying information about
millions of people are rapidly growing, providing identity
thieves with an ever growing pool of potential victims.
Obtaining personal identifying information has become much
more widespread, including computer network hacking, disguised
emails and credit/debit card skimming. Websites have even
been established for the sole purpose of supplying personal
identifying information to those people who commit large scale
identity theft involving numerous identity thieves.
"No longer is the street criminal who steals a purse and uses
the credit cards inside the typical identity thief. In
today's world victims must be vigilant for year to come to
stop the numerous and extensive ways in which they can be
victimized by sophisticated identity thieves. The California
Penal Code needs to be amended to protect victims for years
after the crime occurred."
3)California Restitution : California law directs a court to
determine a victim's losses from a crime and to order the
perpetrator to pay restitution. (Penal Code Section 1202.4.)
Typically, the court directs the probation office to determine
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the amount of restitution. The amount of restitution often
may not have been determined by the date the defendant is
sentenced. That amount will be determined at a later time and
ordered by the court. The defendant may challenge the amount
of restitution determined by the probation officer. Upon such
challenge, the court shall hold a hearing on the issue.
Further, under existing law, when a defendant is committed to
California Department of Corrections and Rehabilitation
(CDCR), the probation department must send a report to the
CDCR regarding the circumstances of the crime and the
defendant's criminal record and social history. (Penal Code
1203c.)
4)Problems Encountered by Victims Led to Enactment of the
Identity Theft Crime in Penal Code Section 530.5 : In recent
decades, identity theft has become a growing and daunting
crime problem. Traditional investigative techniques did not
work well to combat identity theft, a crime that was often
committed by unseen, electronic means. In 1997, California
was one of the first states to create a crime specifically
described as "identity theft" in Penal Code Section 530.5.
Prior to that time, law enforcement agencies generally
considered the defrauded business entity the victim of
identity theft, not the person whose identity was stolen
although applicable statutes described a person whose identity
was misused as a crime victim. However, advocates believed
that the person who was the actual victim often found himself
or herself given no standing in repairing the damage caused by
the crime.
It would appear that the greatest value in the current identity
theft statutes is to allow a victim to clear his or her name.
Penal Code Section 530.6 allows an identity theft victim to
require the police to investigate an identity theft report and
further allows the victim to use the report to obtain a court
order declaring that he or she did not commit certain crimes
or accumulate certain debts. Pursuant to this judicial
procedure, a person may be listed in a database of identity
theft victims maintained by the Department of Justice (DOJ).
One of the most frustrating problems encountered by identify
theft victims is the damage to one's credit. As the current
recession - particularly the crash of the real estate market -
demonstrates, good credit is essential to financial stability.
An identity theft victim may well face months of work and
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substantial expense repairing his or credit. Companies
marketing credit repair services. Credit card companies
compete for business, in part, by including credit monitoring
and repair in a credit account.
5)Restitution for Expenses for a Time Reasonably Necessary to
Make the Victim Whole : This bill provides that a court may
authorize restitution for a time reasonably necessary to make
the victim whole. The statutory requirement that restitution
shall make a victim whole could not be achieved in identity
theft cases if restitution for credit repair and monitoring
were limited to short periods of time. Credit problems can
often arise many years later, i.e., when a person seeks a loan
to purchase a house or vehicle, long after the person's
identifying information was used.
Existing law recognizes that courts may find it difficult to
adequately compensate a victim as of the date of sentencing.
Penal Code Section 1202.46 explicitly provides that where the
specific amount or restitution cannot be determined on the
date of sentencing, the court shall retain jurisdiction to
determine restitution at a later date. Restitution can even
be determined after a defendant has served his or her
sentence. [People v. Buford (2007) 146 Cal.App.4th 966.]
Nevertheless, a court in many cases can determine at the time of
sentencing the cost to monitor and repair credit for a
specified period. Sentencing may not take place for months or
even years after the date of the crime. If the victim can
demonstrate the cost to repair or monitor credit over the time
prior to sentence, the court could calculate the cost for a
specified period. Restitution for loss of income for sales
commissions can serve as an example. Courts are directed to
determine loss of commission income as follows: "Commission
income shall be established by evidence of commission income
during the 12-month period prior to the date of the crime . .
. unless good cause for a shorter period is shown." [Penal
Code Section 1202.4(f)(3)(A).] Similar methods could be used
to determine the costs of credit repair and monitoring.
6)Argument in Support : According to Privacy Rights
Clearinghouse , "Every year, an ever-growing number of
Californians become victims of identity theft. With changes
in technology, increasing amounts of personal identifying
information available electronically, and a souring economy,
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identity theft is becoming a much more lucrative and
sophisticated crime. The result is not only more victims, but
deeper and more extensive victimization.
"It is increasingly common for victims of identity theft to
suffer for years after the crime initially occurs. Thanks to
sophisticated crime rings, victims' personal identifying
information is getting distributed for use among many identity
thieves. Even when an identity theft defendant is prosecuted,
the victimization does not necessarily end. Victims must
monitor and repair their credit for years after the crime
occurred.
"Victims deserve to have a specific right to restitution for
credit monitoring and repair for long after the crime
occurred."
7)Argument in Opposition : According to the California Public
Defenders Association , "This legislation is unnecessary. The
general provisions of the statute as presently written already
authorized the court to order that the defendant make
restitution to the victim in an amount commensurate with the
economic loss suffered. If the amount cannot be determined at
the time of sentencing, subsection (f) provides that the
restitution order shall include a provision that the amount
shall be determined at the direction of the court, and
mandates that the court order 'full restitution.' Subsection
(f)(3) requires that the amount of restitution shall 'fully
reimburse the victim . . . for every determined economic loss
incurred as the result of the defendant's criminal conduct.'
"The aforementioned provisions necessarily include restitution
for expenses incurred to monitor an identity theft victim's
credit report and for the costs to repair the credit of a
victim of identity theft, should such expenses reasonably flow
from the crime and are substantiated by the victim. It is
unnecessary to specifically delineate such expenses to have
them covered."
8)Prior Legislation :
a) SB 612 (Simitian), Chapter 47, Statutes of 2008,
provides that the venue for trial of an identity theft
crime includes the county in which the victim resides and
grants trial courts authority to determine whether the
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county of the victim's residence is the appropriate place
for trial in a particular case.
b) 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
county where the information was taken or the county where
the information was used for an illegal purpose.
c) SB 1254 (Alpert), Chapter 254, Statutes of 2002: (i)
expands the list of items and data constituting "personal
identifying information" for purposes of identity theft;
(ii) makes it a misdemeanor for the acquisition,
possession, retention, or transfer of identifying
information with the intent to defraud, and without an
element of use of the information; (iii) require wireless
communication providers, in addition to financial
institutions and utilities covered by existing law, to
give identity theft victims information about fraudulent
accounts opened in their names; and (iv) places provisions
requiring 10-day compliance with a victim's request in the
Penal Code, in addition to such requirements in existing
Financial Code and Civil Code sections.
d) SB 245 (Wyland), Chapter 478, Statutes of 2001, deletes
the requirement that personal identifying information be
obtained without authorization.
e) SB 125 (Alpert), Chapter 493, Statutes of 2001, allows
an identity theft victim to obtain information about
unauthorized requests for credit that have been made in his
or her name.
f) SB 168 (Bowen), Chapter 720, Statutes of 2001, increases
consumer protections against identity theft by: (i)
allowing consumers to place fraud alerts on their credit
reports, (ii) allowing them to freeze" their credit records
to stop them from being sold, and (iii) prohibiting
businesses and government agencies from many current uses
of Social Security numbers.
g) AB 1897 (Davis), Chapter 956, Statutes of 2000, creates
a judicial process whereby victims of identity theft can
clear their names.
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h) AB 1862 (Torlakson), Chapter 632, Statutes of 2000,
establishes a criminal identity theft database to be
maintained by the DOJ to establish a toll-free telephone
number to access the information
i) AB 156 (Murray), Chapter 768, Statutes 1997, creates a
new crime of identity theft, punishable as a misdemeanor
and made numerous changes to the Consumer Credit Reporting
Agencies Act.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California Insurance Companies
California Bankers Association
California Chamber of Commerce
California Consumer Federation of California
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
Chief Probation Officers of California
Kamala D. Harris, San Francisco District Attorney
Los Angeles County District Attorney's Office
Privacy Rights Clearinghouse
Dolores A. Carr, Santa Clara District Attorney
Reed Elsevier/LexisNexis
San Bernardino County Sheriff's Department
Santa Clara Police Department
Opposition
California Public Defenders Association
Taxpayers for Improving Public Safety
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744