BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 612 (Simitian)
As Introduced February 22, 2007
Hearing date: March 27, 2007
Penal Code
JM:br
IDENTITY THEFT - TRIAL IN COUNTY OF VICTIM'S RESIDENCE
HISTORY
Source: Author
Prior Legislation: SB 1773 (Wayne) - Ch. 908, Stats. 2002
AB 2886 (Frommer) - Ch. 522, Stats. 2006
Support: California District Attorneys Association; Privacy
Rights Clearinghouse
Opposition:Taxpayers for Improving Public Safety
KEY ISSUE
SHOULD VENUE FOR AN IDENTITY THEFT TRIAL INCLUDE THE COUNTY WHERE
THE VICTIM RESIDES?
PURPOSE
The purpose of this bill is to provide that the venue for trial
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of an identity theft crime includes the county in which the
victim resides.
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
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
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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 provides 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. (Pen. Code 530.6.)
Existing law provides that the proper (territorial)
jurisdiction - venue - for a crime is in a court in the
jurisdiction where the crime was committed. (Pen. Code
777.)
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Existing law provides that when a crime is committed in part in
one county (or other jurisdictional entity) and in part in
another county, trial can be held in either county. (Pen. Code
781.)
Existing law 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. (Pen. Code
784.7.)
Existing law provides that 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. (Pen. Code 784.5.)
Existing law provides that when a person takes property in one
jurisdiction by burglary, carjacking, robbery, theft, or
embezzlement and brings the property into another jurisdiction,
or a person receives the property in another jurisdiction, the
district attorney can prosecute in any of the jurisdictions.
The district attorney can also prosecute in a contiguous
jurisdiction if the defendant is arrested in that jurisdiction,
the prosecution secures on the record the defendant's knowing,
voluntary, and intelligent waiver of the right to trial in the
county where the crime was committed, and the defendant is
charged with one or more property crimes in the arresting
territory. (Pen. Code 786.)
Existing law provides 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. (Pen. Code 786, subd. (b)(1).)
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Existing law provides that where multi-county identity theft
crimes involving the same defendants and the same victim are
filed in a single county, the court shall hold a hearing to
determine if that county is 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.
(Pen. Code 786, subd. (b)(2).)
This bill provides that venue for trial of identity theft is
also proper in "the county in which the victim resided at the
time the offense was committed . . . ."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA")
IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
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<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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coordination between health care staff and custody staff."<5>
This bill would appear to have ROCA implications.
COMMENTS
1. Need for This Bill
According to the author:
Senate Bill 612 allows the crime of identity theft to
be tried in the victim's county of residence. The
bill would enable prosecution of an identity theft
crime in the county where the theft occurred, the
county in which the victim resides, or the county
where the information is used for an illegal purpose.
Federal and state courts have ruled that pursuant to
the right of vicinage there must be a reasonable nexus
between the crime and the county of trial. Current
law provides for multiple jurisdictional options for a
variety of crimes. In the case of identity theft, the
impact of the crime is often felt at the victim's
residence, where credit card fraud, electronic theft,
pretexting, or other theft of intangible property must
be addressed. This bill would allow local prosecutors
to help local victims.
The bill does not mandate that the crime be prosecuted
in the county where the victim resides, but allows the
victim's county of residence to be considered as an
option for trial. Many cases of identity theft that
occur in large urban areas are not prosecuted because
of the magnitude of other crimes in these locales.
Less populous counties are oftentimes much more
aggressive about prosecuting identity theft crimes.
SB 612 will allow local prosecutors more authority to
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<5> Primer, supra fn. 4.
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pursue these crimes.
Seventeen states, including Florida, Illinois,
Washington and New York, allow identity theft cases to
be tried in the county of the victim's residence.
2. Basic Concepts: Jurisdiction - Power of the Court to Try a
Case; Venue - the Place of the Trial; and Vicinage -
Geographic Area from which the Jury is Chosen
Subject Matter Jurisdiction
Subject matter jurisdiction is the basic power of a court to
hear a case. 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. (Pen. Code
681.) Thus, any superior court in the state has subject matter
jurisdiction over an identity theft case charged as a felony.
Venue and Vicinage
The California Supreme Court in People v. Price (2001) 25
Cal.4th 1046, 1054-1056<6> explained the concepts of venue
(territorial jurisdiction) and vicinage (area from which jury
pool is chosen) as applied to criminal prosecutions.
[V]enue and vicinage are . . . distinct . . . Venue
refers to the location where the trial is held,
whereas vicinage refers to the area from which the
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<6> In Price, the defendant was charged with various counts of
murder, child abuse and child endangerment in Santa Clara County
and Riverside County. The victims in both counties were the
same. The cases were consolidated and heard in Riverside
County. (Price v. Superior Court, supra, 25 Cal.4th 1046.)
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jury pool is drawn. It is possible in theory to
change one but not the other.
The concepts . . . are closely related, as a jury pool
ordinarily is selected from the area in which the
trial is to be held. The concepts have different
origins and purposes, however. 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. . . . Most California venue
statutes serve a similar purpose in reducing the
potential burden on a defendant who might otherwise be
required to stand trial in a distant location that is
not reasonably related to the alleged criminal
conduct.
. . . [T]he general rule of territorial jurisdiction
over felonies is . . . in Section 777: "[E]xcept as
otherwise provided . . . the jurisdiction of every
public offense is in any competent court within the
jurisdictional territory of which it is committed."
Ordinarily the jurisdictional territory of a superior
court is the county in which it sits. ( 691, subd.
(b).) Venue or territorial jurisdiction establishes
the proper place for trial, but is not an aspect of
the fundamental subject matter jurisdiction of the
court and does not affect the power of a court to try
a case.
When the Legislature creates an exception to the rule
of Section 777, the venue statute is remedial and for
that reason is construed liberally to achieve the
legislative purpose of expanding criminal
jurisdiction. (Internal citations omitted; emphasis
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added.)
The court in Price further explained that the right of vicinage
in California is effectively limited to a requirement that there
be a reasonable nexus between the crime and the county of trial.
(Id, at 1074.) The right to an impartial jury is a more
important consideration than the place from which a jury is
chosen. Today, defendants often argue that jurors should know
nothing about a case in order to eliminate prejudice about the
defendant's guilt. (Id, at 1059-1060, 1064-1065.)
3. Determination of Proper Venue for Trial of Multiple Counts of
Identify Theft Committed in Multiple Counties - SB 1773
(Wayne), Chapter. 908, Statutes of 2002
In 2002 the Legislature considered the issue of identity theft
crimes involving one victim occurring in multiple counties. An
identity theft perpetrator could relatively easily commit crimes
in many countries across the state. Such cases could give rise
to overlapping prosecutions, leading to numerous problems,
including investigation and evidence collection problems, claims
that the first prosecutor to file charges should have resolved
all charges arising out of an incident and others. To address
such concerns, the applicable venue section was amended to
direct a court to consider whether all charges should be tried
in one county, or whether some charges should be severed and
tried in a different county. The prosecutor in such a case is
directed to obtain the agreement of the district attorneys in
the other counties where venue would also lie.
4. Concerns about Identity Theft Venue Rules Proposed by This
Bill - Concerns with the Ability of the Parties to Obtain
Evidence, Travel of Witnesses, Presenting a Defense
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The court in Price noted that venue<7> is generally a matter of
legislative policy, not constitutional imperative:
"Notwithstanding the general preference for local venue . . .
because venue for trial implicates legislative policy, not
constitutional imperative, the Legislature may determine the
venue for trial except to the extent vicinage or due process
provisions of the state or federal Constitution circumscribe
that authority." (Price, at p. 1056.)
Nevertheless, Price also noted that the ability of the
defendant to defend against identity theft charges could be
severely compromised if he or she could not reasonably
obtain evidence by due diligence: "Most California venue
statutes serve a similar purpose in reducing the potential
burden on a defendant who might otherwise be required to
stand trial in a distant location that is not reasonably
related to the alleged criminal conduct." (People v.
Price, supra, 25 Cal.4th 1046, 1056.)
More recently, the California Supreme Court has noted:
Venue provisions . . . serve a variety of purposes.
First, [v]enue in the place where the crime was
committed promotes the convenience of both parties in
obtaining evidence and securing the presence of
witnesses. [Citation.] Second, from the perspective
of a defendant, statutory enactments that provide for
trial in a county that bears a reasonable relationship
to an alleged criminal offense also operate as a
restriction on the discretion of the prosecution to
file charges in any locale within the state that it
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<7> It appears that the author's statement dismisses any
concerns about trial in a county far removed from the place
where the crime occurred by noting that the right of "vicinage"
only requires "some reasonable nexus between the trial and the
place where the crime occurred." That statement may be true as
far as it goes. However, vicinage only refers to the place from
which the jury pool is drawn. "Venue" specifically refers to
the place of trial. (People v. Price, supra, 25 Cal.4th at 1054
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chooses, an option that, if available, would provide
the prosecution with the considerable power to choose
a setting that, for whatever reason, the prosecution
views as favorable to its position or hostile or
burdensome to the defendant's. . . . The principal
justification today for the venue requirement of trial
in the vicinity of the crime is to "safeguard against
the unfairness and hardship involved when an accused
is prosecuted in a remote place. [Citations.]
Finally, venue provisions also serve to protect the
interests of the community in which a crime or related
activity occurs, vindicat[ing] the community's right
to sit in judgment on crimes committed within its
territory. (People v. Posey (2004) 32 Cal.4th 193,
210, citations omitted, internal quotation marks
omitted, emphasis added.)
For example, a defendant held for trial in San Diego may have
great difficulty obtaining evidence from Sacramento establishing
that another person obtained and improperly used the identifying
information of the victim to obtain large quantities of goods
and numerous services in Sacramento and other northern
California counties. If a defendant is denied due process
because he or she was unable to properly present a defense, the
prosecution would be reversed and scarce state resources wasted.
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The court in Posey also recognized the substantial interests of
the convenience of the parties and witnesses, and the need for
obtaining important evidence. In this regard it should be noted
that in theft cases the victim may only testify for a few
minutes. The evidence may be found in a county hundreds of
miles from the residence of the victim. The defendant may be
transported these hundreds of miles and be held in jail during
the trial. Due process could be compromised in such
circumstances. Arguably, a court should review whether or not
the county of the victim's residence is the proper place for
trial in any particular case.
The author may wish to consider amending the bill to direct a
court, where a charge of identity theft is filed in the county
where the victim resides, to determine whether that county is
the proper place for trial. The court could consider the extent
of testimony expected to be given by the victim, the county of
residence of other witnesses, the location of the evidence and
the ability of the defendant to present an effective defense.
Such a provision would address the concerns about venue noted in
relevant California Supreme Court cases.
A suggested amendment is as follows:
Where the prosecutor files charges under Section 530.5
in the county in which the victim resided at the time
the offense was committed, and no other basis for
jurisdiction applies, the court shall hold a hearing
to determine whether the county of the victim's
residence is the proper county 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.
WHERE THE PROSECUTION FILES AN IDENTITY THEFT COMPLAINT IN THE
COUNTY OF THE VICTIM'S RESIDENCE, AND NO OTHER BASIS FOR VENUE
IN THAT COUNTY APPLIES, SHOULD THE COURT BE REQUIRED TO
DETERMINE IF THAT COUNTY, RATHER THAN THE COUNTY WHERE
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SUBSTANTIAL EVIDENCE CONCERNING THE CHARGES IS LOCATED, SHOULD
BE THE COUNTY OF PROSECUTION?
5. Contrast between This Bill and a Change of Venue Motion, which
Applies where the Defendant Can Show that He or She Could Not
Receive a Fair Trial Because of Jury Bias
A change of venue motion is made where the defendant argues that
he or she cannot receive a fair trial in a county in which venue
would otherwise be proper. (4 Witkin & Epstein, Cal. Crim. Law,
Juris. & Venue, 65.) A so-called change of venue motion
essentially requests a change in vicinage - the place from which
the jury is drawn. Typically, the defendant argues that
pre-trial publicity renders the entire jury panel overly
prejudiced. A recent example is the Scott Peterson trial.
Peterson was convicted of killing his wife and near-term unborn
child. The court in the Peterson case found that Peterson could
not likely receive a fair trial in the county where the crime
occurred (Stanislaus County) and the trial was moved to San
Mateo County. This bill does not substantially involve issues
arising in change of venue motions. This bill concerns the
proper county, per se, for trial of an identity theft case.
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