Existing law makes it a public offense for a person to acquire or retain possession of, or sell or transfer, the personal identifying information of another person with the intent to defraud. Existing law makes these offenses punishable as misdemeanors or felonies, as specified.

This bill would provide an enhanced sentence of an additional 2 years imprisonment for a felony conviction when the victim was 65 years of age or older. By increasing the penalties for existing felonies, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: April 7, 2015

Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Bill Quirk, Chair

ABPCA Bill Id:AB 441

Author:(Wilk) – As Introduced Ver:February 23, 2015

SUMMARY:

Creates a sentencing enhancement of two additional years of imprisonment for any person convicted of identity theft if the victim was 65 years of age or older at the time of the offense.

EXISTING LAW:

1. Provides that every 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, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, 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 county jail for 16 months, or two or three years. (Pen. Code, § 530.5, subd. (a).)
   
   

2. States that every person who, with the intent to defraud, acquires or retains possession of the personal identifying information of another person is guilty of a public offense, and is punishable by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment. (Pen. Code, § 530.5, subd. (c)(1).)
   
   

3. 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 this section, 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 for 16 months, or two or three years. (Pen. Code, § 530.5, subd. (c)(2).)
   
   

4. Provides that every person who, with the intent to defraud, sells, transfers, or conveys the personal identifying information of another person is punishable 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 county jail for 16 months, or two or three years. (Pen. Code, § 530.5, subd. (d)(1).)
   
   

5. Specifies that any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, fraud, or identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:
   
   

   1. By a fine not exceeding $2,500, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding $10,000, or by imprisonment in the county jail for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding $950.

2. By a fine not exceeding $1,000, by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding $950. (Pen. Code, § 368, subd. (d).)
   
   

1. Provides that any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, fraud, or identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:

1. By a fine not exceeding $2,500, or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding $10,000, or by imprisonment in the county jail for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding $950.

2. By a fine not exceeding $1,000, by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding $950. (Pen. Code, § 368, subd. (e).)
   
   

1. Defines "elder" as any person who is 65 years of age or older. (Pen. Code, § 368, subd. (g).)
   
   

2. States that upon conviction of any felony it shall be considered a circumstance in aggravation in imposing the upper term if the victim of an offense is particularly vulnerable, or unable to defend himself or herself, due to age or significant disability. (Pen. Code, § 1170.85, subd. (b).)
   
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Seniors are one of the most vulnerable groups of people and it is important we protect them from being taken advantage of. Technology is constantly changing and due to their unfamiliarity, seniors are more likely to be targets for identity theft scams. This bill hopes that the increased punishment will deter criminals from targeting vulnerable seniors."
   
   

2. Necessity of this Bill: Under existing law, identity theft may be punished as either a misdemeanor or a felony. A person convicted of misdemeanor identity theft may be sentenced to up to one year in county jail. If convicted of felony identity theft, the person may be imprisoned in the county jail for 16 months, or two years or three years. It is within the court's discretion to apply the term that best serves the interests of justice. (Pen. Code, § 1170, subd. (b).) The court may consider circumstances in mitigation and aggravation when deciding which term to apply. (Ibid.) The vulnerability of a victim, specifically due to age or disability, is a recognized circumstance in aggravation. (Pen. Code, § 1170.85, subd. (b); Cal. Rules of Court, Rule 4.421, subd. (a)(3).)
   
   Existing law also provides for enhanced penalties for specified crimes committed against elderly or dependent persons. (Pen. Code, § 368.) Identity theft is one of the crimes specified in the statute that may trigger the enhanced penalty. (Ibid.) If convicted under this statute, a person may face misdemeanor or felony penalties, depending upon the value of the money, labor, goods, services, or real or personal property taken or obtained. If the value exceeds $950, then the felony penalty would apply and the person would face imprisonment for two, three or four years, and a fine not exceeding $10,000. (Pen. Code, § 368, subds. (d)(1) and (e) (1).) If the value does not exceed $950, then the misdemeanor penalty would apply and the person could face up to one year in jail, and a fine not exceeding $1000. (Pen. Code, § 368, subds. (d)(2) and (e)(2).)
   
   

In light of the existing statute that provides enhanced penalties for financial crimes committed against elderly persons, which specifically includes identity theft, as well as the ability of the court in an identity theft case to choose the upper term for various reasons, including if the victim was particularly vulnerable due to age, there does not appear to be a demonstrated need for this bill.

3. Argument in Support: According to the California Senior Legislature, the sponsor of this bill, "This bill would provide an enhanced sentence of an additional 2 years of imprisonment for a felony conviction when the victim is 65 years of age or older.
   
   "We are hopeful that the increased punishment will deter criminals from targeting vulnerable senior citizens."
   
   

4. Argument in Opposition: According to the California Attorneys for Criminal Justice, "The United States Department of Justice, in a statistical study covering a 10 year span between 2003-2013, found that people aged 65 years or older actually experienced lower rates of identity theft (5.0%) than people aged 25-49 (7.9%) and people aged 50-64 (7.8%). (Morgan, Rachel and Mason, Britney, "Crimes Against the Elderly, 2003-20013" [as of March 24, 2015, hosted at http://www.bjs.gov/content/pub/pdf/cae0313.pdf].) Additional studies by the Federal Trade Commission have reached the same conclusion. In other words, the people most vulnerable to identity theft are working age adults, who are taking out home mortgages, opening new bank accounts and applying for credit, and not seniors living on fixed incomes. By singling out identity theft against seniors for harsher punishment, AB 441 may have the unintended effect of pushing would be identity thieves the more prevalent identity theft epidemic plaguing working age adults.
   
   "AB 441 would take away discretion from trial judges who are best placed to consider the individual punishments that find individual offenders. Judges are currently vested with substantial discretion to impose a wide variety of penalties and conditions of parole and probation that can adequately punish identity theft and associated crimes when those crimes target more vulnerable victims, whether that vulnerability is related to age or other factors not considered by AB 441, such as a disability or infirmity."
   
   
   

5. Related Legislation:
   
   

   1. SB 196 (Hancock) would, commencing July 1, 2016, authorize a county adult protective services agency to file a petition for a protective order on behalf of an elder or dependent adult if the elder or dependent adult has been identified as lacking capacity and a conservatorship is being sought. SB 196 is pending hearing by the Senate Committee on Judiciary.

2. SB 338 (Morell) would provide that a person who knows or reasonably should know that the victim is an elder or dependent adult, and under circumstances or conditions likely to produce significant or substantial mental suffering, willfully causes or permits the victim to suffer unjustifiable mental suffering, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed $6,000, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years. SB 338 is pending hearing by the Senate Committee on Public Safety.
   
   

1. Prior Legislation:
   
   

   1. AB 2623 (Pan), Chapter 823, Statutes of 2014, expands the elder and dependent adult abuse training curriculum requirements mandatory for specified peace officers, to include legal rights and remedies available to victims; and requires the Commission on Peace Officer Standards and Training (POST) to consult with local protective services offices and the Office of the State Long-Term Care Ombudsman when creating new or updated training materials.
      
      

   2. SB 543 (Block), Chapter 782, Statutes of 2013, specifies a conviction for theft, embezzlement, forgery, fraud, or identity theft against an elder or dependent adult as a prior qualifying offense in the crime of petty theft with a specified prior conviction.
      
      

   3. AB 1525 (Allen), Chapter 632, Statutes of 2012, requires money transmitters to provide their contracted agents with training materials on recognizing and responding to elder or dependent adult financial abuse by April1, 2013, and annually thereafter.
      
      

   4. AB 332 (Butler), Chapter 366, Statutes of 2011, increased the fines for fraud, embezzlement, theft, and identity theft against an elder or dependent adult when the amount taken is more than $950.
      
      

   5. AB 1293 (Blumenfield), Chapter 371, Statutes of 2011, authorizes prosecutors to petition for forfeiture of assets in specified cases involving financial abuse of elder or dependent adults.

REGISTERED SUPPORT / OPPOSITION:

Support

California Senior Legislature (Sponsor)
California Association for Health Services at Home
California District Attorneys Association

Opposition

American Civil Liberties Union

California Attorneys for Criminal Justice
California Public Defenders Association

Analysis Prepared by:

Stella Choe / PUB. S. / (916) 319-3744