Former Prosecutor Explains Identity Theft Charges In California

Identity theft is when someone wrongfully obtains a person’s personal information and uses it to commit a fraud or other illegal activity.  

Identity theft under Penal Code 530.5 is a “wobbler” offense, meaning that a prosecutor can charge either a misdemeanor or felony depending on the harm inflicted, value of the items or services stolen and prior criminal history of the offender. It can also be charged as a federal offense. The Los Angeles District Attorney and Los Angeles City Attorney’s Offices have specialized units dedicated to prosecute identity theft.

Types of Identity Theft

The crime of identity theft is found under Penal Code 530.5. It comprises of four different types:

  1. Willfully obtaining another person’s (California Penal Code 530.55(a) – For purposes of this chapter, “person” means a natural person, living or deceased, firm, association, organization, partnership, business trust, company, corporation, limited liability company, or public entity, or any other legal entity.))personal identifying information1 and using that person’s information for any unlawful purpose2
    without that person’s consent
  2. Acquiring or retaining possession of another person’s personal identifying information without consent to commit a fraud
  3. Selling, transferring or providing the personal identifying information of another person without consent to commit a fraud
  4. Selling, transferring or providing the personal identifying information of another person with knowledge that information will be used to commit a fraud
Intent

You need only possess the intent to commit identity theft. Intent can be proved by showing that you acquired another person’s personal identifying information because of the nature of your job and then intended to use it to gain a benefit for yourself.

Example

A store clerk or waiter who is in possession of another person’s credit card information by having written it down or retaining a copy of a receipt may be presumed to have intent to commit fraud.

Fraud

Fraud is an act designed to secure an unlawful advantage, benefit or gain or to cause another person to suffer a loss. Obvious examples of fraud under identity theft include:

  • Using another person’s credit card without permission
  • Stealing someone’s tax refunds
  • Forging a signature on a check
  • Applying for credit with someone else’s financial and identifying information

What Qualifies As Personal Identifying Information?

Personal identifying information can be:

  • Social Security number
  • Birthdate
  • Credit card or bank card number
  • Bank account number
  • Driver’s license number
  • Personal identification card number
  • Taxpayer ID number
  • Health insurance number
  • Alien registration number
  • Professional or occupational license number
  • PIN number
  • Passport information
  • Addresses and phone numbers
  • Employee or school ID numbers
  • Email account
  • Password to gain entry to social media accounts, bank or other financial accounts
  • Information in a birth or death certificate

With another person’s personal identifying information, you can obtain the following by unlawful or fraudulent means:

  • Goods
  • Services including public assistance
  • Real property
  • Medical information
  • Credit
  • Posting offensive comments or photographs in the guise of another person to cause them emotional harm, embarrassment, ridicule or other loss

You can also commit identity crime by innocently coming into possession of another person’s personal identifying information and then using it for unlawful purposes.

Federal Identity Theft

Identity theft is also a federal offense and is found under Title 18 United States Code, Section 1028. You can be found guilty of this federal law by engaging in any of the following conduct3:

  • Knowingly transferring (selling or providing) a stolen identification card
  • Knowingly presenting the identity card of another person
  • Knowingly transferring, producing, possessing or trafficking in equipment used to produce false identity documents

If convicted of federal identity theft, you face up to 30 years in prison and thousands of dollars in fines.

Defenses To Identity Theft

As with any criminal offense, there are certain defenses available to you:

Lack of Criminal Purpose Or Fraudulent Intent

While you may have satisfied an element of identity theft by merely possessing another person’s identifying information without consent, you must have intended to use it for an unlawful purpose. If you assert that you may have originally had such intent but abandoned it, then you should be found not guilty. For instance, if the credit card numbers you wrote down from your job as a waiter were found in your wallet but had been written down 6-months earlier and they were never used, then no crime has been committed since you apparently abandoned any plans to use them.

You Had Consent

If you reasonably believed you had consent to use someone else’s credit card to purchase goods or services, then you committed no crime. However, that person may have consented to a single use of the card to buy a certain item. If used for more than that, then you had no consent. You also cannot use another person’s identifying information to obtain benefits for yourself such as public assistance even with that person’s consent.

    Value of item or services stolen was Under $950

Whether you are charged with a misdemeanor or felony may depend on the value of the item stolen. If you can show it was less than $950, you may only face misdemeanor charges.

Unlawful Search & Seizure

Law enforcement personnel cannot randomly search your computer or anything else in your possession or within your residence, office or vehicle without probable cause and in most cases, without a valid search warrant. If seized in violation of your right against unlawful search and seizure, your defense attorney can move to suppress any incriminating evidence that was taken from being used against you.

You are an interactive computer service technician or software provider

These workers are deemed exempt from possessing personal identifying information since it is often required as part of their task to provide computer services or to repair them. However, you must not have intended to use or transfer such information for unlawful or fraudulent purposes.

Penalties

As indicated herein, you may be charged with either a misdemeanor or a felony depending on your criminal record, the value of items or services illegally obtained and other factors.

PenaltyMisdemeanorFelony
FineUp to $1,000Up to $10,000
Jail or PrisonUp to 1 year in county jail16 months, 2 0r 3 years in state prison4

Identity theft is often committed more than once by a defendant who uses the same personal identifying information to purchase numerous items. For each time you fraudulently use the information to procure a service, benefit or good, you can be charged with a separate count. Consequently, you could face substantial prison time and fines.

Next Steps If You Need Help

If you have been arrested and would like to learn more about how attorneys charge.

If you want to understand why its important to have an attorney represent you.

If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.

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Footnotes

  1. California Penal Code 530.55(b) – For purposes of this chapter, “personal identifying information” means any name, address, telephone number, health insurance number, taxpayer identification number, school identification number, state or federal driver’s license, or identification number, social security number, place of employment, employee identification number, professional or occupational number, mother’s maiden name, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password, alien registration number, government passport number, 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, or credit card number of an individual person, or an equivalent form of identification. []
  2. An unlawful purpose includes unlawfully (obtaining/[or] attempting to obtain) (credit[,]/[or] goods[,]/[or] services[,]/[or] real property[,]/ [or] medical information)/ [[or] <insert other unlawful purpose>] without the consent of the other person.[CALCRIM 2040] []
  3. See Also Identity Theft and Assumption Deterrence Act – Federal Trade Commission []
  4. California Penal Code 1170(h)(1) – Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years. []