Identity theft is one of the fastest growing crimes in America...and California reports more incidents than almost any other state.

Identity theft is essentially the taking of another person's personal identifying information for use in an unlawful or fraudulent manner.¹

The law is also couched in the phrase "unauthorized use of personal identifying information to obtain credit, goods, services, or medical information in the name of another person."²

Examples

People typically engage in identity theft to

1. secure an undeserved financial benefit for themselves (for example, by using another person's credit card or by signing someone else's name to a check),

2. cause the victim to suffer a loss...which could be financial, emotional or some other type of damage...or

3. escape criminal liability by using another person's name, birth date or other identifying information.

Defenses

Some common legal defenses to identity theft include (but are not limited to):

1. you didn't use the information in connection with an unlawful purpose,

2. you didn't have criminal intent, and/or

3. you were the victim of mistaken identity or false accusations.

Penalties

Identity theft in California is a wobbler, which means that the offense may be punished as either a misdemeanor or a felony.

If punished as a felony, you face:

• up to three years in county jail, and/or

• a maximum $10,000 fine.

If punished as a misdemeanor, you face:

• up to one year in a county jail, and

• a maximum $1,000 fine.³

And if you are prosecuted under the federal identity theft law, you face increased fines and up to 30 years in federal prison.⁴

Below, our California criminal defense attorneys ⁵ explain California's identity theft laws by addressing the following:

1. What is California Identity Theft Under Penal Code 530.5 PC?

1.1. Legal definitions

1.2. Federal identity theft law under Title 18 U.S.C. 1028

1.3. Examples of California identity theft

2. Legal Defenses

2.1. There was no unlawful purpose

2.2. You didn't have fraudulent intent

2.3. False accusations / mistaken identity

2.4. You are an interactive computer service or

software provider

3. Penalties, Punishment, and Sentencing

4. Related Offenses

4.1. California's theft laws

4.2. Penal Code 368 PC California's elder abuse law

4.3. California's conspiracy law

4.4. California's attempted crimes law

4.5. Penal Code 502 unauthorized computer access

4.6. Penal Code 530.5(e) mail theft

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is California Identity Theft Under Penal Code 530.5 PC?

Generally speaking, identity theft is defined as the taking of another person's personal identifying information for an unlawful purpose. More specifically, Penal Code 530.5 PC addresses and prohibits four types of identity theft:

• 1. willfully obtaining another person's personal identifying information and using that information for any unlawful purpose without that person's consent-

  2. 
     

  3. ∗examples of these illegal purposes include (but are not limited to) obtaining:

  4. 
     

     • money,

     • credit,

     • goods,

     • services,

     • property, or

     • medical information,

1. acquiring or retaining possession of another person's personal identifying information...without that person's consent...with the intent to commit a fraud,

2. selling, transferring or providing the personal identifying information of another person...without that person's consent...with the intent to commit a fraud, and

3. selling, transferring or providing the personal identifying information of another person with the actual knowledge that the information will be used to commit a fraud.⁶

Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal meanings.

1.1. Legal definitions

"Willfully obtaining another person's information"

As Orange County criminal defense attorney John Murray⁷ explains "The term willfully means intentionally...it does not necessarily imply any ill-will or evil design. And specifically with respect to identity theft, willfully obtaining another person's identifying information doesn't necessarily mean that you actually seek the information or take affirmative steps toward securing it. It simply means that you freely accept the information and intentionally decide to use it in some fashion."

Example: The defendant receives an unsolicited text message that reveals someone else's e-mail password. The defendant then uses that password to access the individual's Facebook account where he (1) edits her personal profile to include a sexually explicit description of herself, and (2) writes other sexually explicit messages on two of her male friends' "walls" while posing as her.

Despite the fact that the defendant made no effort to obtain the password, the court still found that he used it to obtain the victim's Facebook password and to take the above actions. By doing so, the court held that he "willfully" obtained the victim's identifying information thereby committing identity theft.⁸

"Personal identifying information"

Personal identifying information includes information such as

• names, date of birth, addresses and telephone numbers,

• tax I.D. and social security numbers,

• driver's license numbers and passport information,

• school I.D. and employee I.D. numbers,

• bank account and/or credit card account information, and

• information contained in birth and death certificates.⁹

Fraud

Finally, the term "fraud" under California's criminal fraud laws refers to a deliberate act that is designed to (1) secure an unfair or unlawful gain, or (2) cause another person to suffer a loss.

With respect to identity theft, typical examples of fraud include financial gain to the offender which usually results in a financial loss to the victim. Using another person's name and/or other information to collect insurance benefits or making purchases on someone else's credit card are two prime examples.

It is important to understand that while the second, third and fourth types of identity theft noted above necessarily involve fraud, the first does not. The first only prohibits using the personal information for any "unlawful purpose".

Looking to the "Facebook" example from above, the defendant argues that he did not commit a crime by posting the comments and is therefore not guilty of identity theft. The court disagreed and pointed out that the word "unlawful" doesn't only refer to criminal activity, but to any act prohibited by some type of law - even a civil one. By exposing the victim to ridicule and embarrassment, he was guilty of libel - a civil wrong - which proved that he was guilty of identity theft.¹⁰

1.2. Federal identity theft law under Title 18 U.S.C. 1028

Because identity theft is so widespread and can cause a victim to suffer substantial personal damages, the U.S. legislature enacted the Identity Theft and Assumption Deterrence Act of 1998 as federal law. This law...codified in Section 1028 of Title 18 of the U.S. Code...makes identity theft a federal offense.¹¹

This federal law is more comprehensive than California's identity theft law. In addition to the violations noted above, this law additionally prohibits acts such as

1. knowingly presenting someone else's I.D.,

2. knowingly transferring a stolen identification document, and

3. knowingly producing, transferring, possessing or trafficking in equipment that will be used to produce false identification documents.

As a federal offense, a conviction for identity theft subjects an offender to substantial fines and up to 30 years in prison.¹²

1.3. Examples of California identity theft

Common examples of California identity theft include (but are not limited to):

• Internet fraud - when, for example, you use someone else's credit card to make an online purchase (which is also a violation of California's credit card fraud law) or you use someone else's email account (which would also violate California's false personation laws) California's false personation laws

• applying for a mortgage or other loan using someone else's name and identifying information,

• forging someone else's signature on a check (which would also violate

• Penal Code 470 PC California's forgery law,

• using someone else's name and social security number in order to collect welfare or other insurance benefits (which would also be a violation of California's welfare fraud laws and/or California's unemployment insurance fraud laws),

• using someone else's name and birth date in connection with a criminal offense.

2. Legal Defenses

There are a variety of California legal defenses to identity theft that a skilled criminal defense attorney can present on your behalf. The following are some of the most common examples.

2.1. There was no unlawful purpose

Penal Code 530.5 subdivision (a) prohibits willfully obtaining another person's personal identifying information and using that information for any illegal purpose without that person's consent. If you are charged under this section...but have not used the information for any unlawful purpose...you should be acquitted of identity theft.

If, for example, you obtained someone else's personal information but didn't actually use it...you originally planned on using it but ultimately decided not to...you haven't violated this law.

2.2. You didn't have fraudulent intent

Similarly, if you are charged with one of the other subdivisions of Penal Code 530.5 PC California's identity theft law...but did not intend to commit a fraud...you should not be held liable for identity theft.

Possessing someone else's personal identifying information is not a crime in and of itself. It only rises to the level of identity theft if you use that information (1) in an unlawful manner under subdivision (a), or (2) with fraudulent intent under the remaining subdivisions.

2.3. False accusations / mistaken identity

Outright innocence is, of course, the best defense. If we can establish the fact that someone either falsely accused you of identity theft or that you were the victim of mistaken identity, then your charges should be dismissed.

Perhaps a woman with whom you used to live is the victim of identity theft. Because you are the only person who she believes had access to her personal information, she accuses you the crime. In reality, you knew nothing of the matter. Or perhaps you are a caregiver to an elderly person whose credit card has been used to make unauthorized charges. The elder's family accuses you, yet it was an estranged son who was making the charges.

As you can imagine, there are numerous reasons a person could be charged based on false accusations or due to mistaken identity. But not to worry, we're here to help. With our more than 100 combined years of legal experience, we know the most effective investigation techniques to uncover the truth in an effort to help clear your false charges.

2.4. You are an interactive computer service or software provider

This defense is directly built into the law. Per Penal Code 530.5 subdivision (f), "an interactive computer service or access software provider, as defined in subsection (f) or Section 230 of Title 47 of the United States Code, shall not be liable under this section unless the service or provider acquires, transfers, sells, conveys, or retains possession of personal information with the intent to defraud."

So as long as you comply with this provision...and do not intend to use the information in a fraudulent manner...you are exempt from prosecution under this law.

3. Penalties, Punishment, and Sentencing

California's identity theft law is what is known as a California wobbler offense. A "wobbler" is a crime which the prosecutor can choose to file as either a misdemeanor or a felony depending on

1. the facts of your case, and

2. your criminal history.

If convicted of this offense as a California misdemeanor you face:

• up to one year in a county jail, and/or

• a maximum $1,000 fine.

If convicted of the California felony, you face:

• 16 months, or two or three years in county jail, and

• a maximum fine of $10,000.¹³

It is important to understand that if you use another person's identifying information more than one time, each time you do so constitutes a separate violation of this law. As a result, these penalties apply to each and every act of identity theft...even if the offense is against the same victim.¹⁴

And...depending on the circumstances...you could face a variety of other penalties if you are convicted of additional crimes...which leads to our final section...

4. Related Offenses

There are a number of crimes that are closely related to identity theft. Prosecutors often charge these offenses in connection with or in lieu of Penal Code 530.5 PC. Some of the most common include offenses to which we've already referred:

• California credit card fraud,

• Penal Code 529 PC California's false personation law,

• California welfare fraud,

• California unemployment insurance fraud,

• Internet fraud, and

• Penal Code 470 PC California's forgery law.

Some others are as follows:

4.1. California theft offenses

Since many instances of identity theft involve not only stealing a person's identifying information...but also goods, money or other valuable services by using that identifying information...identity theft often triggers a California theft offense as well.

If the value of the money, goods or services that you are accused of unlawfully obtaining exceeds $950, prosecutors could additionally charge you with violating Penal Code 487 PC California's grand theft law. This offense is a wobbler, punishable in the same manner as identity theft, described in Section 4 above.¹⁵

If the value is $950 or less, you face charges under Penal Code 484 PC California's petty theft law. Petty theft is a misdemeanor, punishable by up to six months in a county jail and a maximum $1,000 fine.¹⁶

4.2. Penal Code 368 PC California's elder abuse law

Penal Code 368 PC California's elder abuse law protects elders..."elders" are persons 65 and older...from emotional, physical and financial abuse.¹⁷

If, for example, you are a caregiver for an elderly person and, for example, you use that person's information to intercept medical payments or social security payments or forge his/her name to cash a check, prosecutors could charge you with identity theft and elder abuse.

Elder abuse is also a wobbler, but the possible penalties increase from a maximum three-year county jail sentence to:

• a maximum four-year California state prison sentence for the felony, or

• a maximum $1,000 fine to a maximum $6,000 fine for the misdemeanor.¹⁸

4.3. California's conspiracy law

If you have an agreement with one or more people to engage in identity theft, you may be convicted of violating California's identity theft laws and of violating California's conspiracy laws.

California's conspiracy laws penalize fraud crimes as wobblers, punishable by:

• 16 months or two or three years imprisonment for a felony, or

• a maximum one year in the county jail and a maximum $1,000 fine for the misdemeanor.

However, if you are convicted of felony conspiracy to commit identity theft, the maximum fine increases to $25,000.¹⁹

And if you are convicted of conspiring to commit identity theft under the federal law prohibiting identity theft, you face the same penalty as you would for federal identity theft -- even if you don't actually engage in identity theft.²⁰

4.4. California's attempted crimes law

Under Penal Code 664 PC California's law regarding attempted crimes, you face one-half of the sentence you would otherwise face for an identity theft conviction if you attempted to commit the crime but were prevented from doing so.²¹

However, like the federal law concerning conspiracy to commit identity theft, attempted identity theft...under federal law...subjects you to the same penalties as if you had completed the crime.²²

4.5. Penal Code 502 unauthorized computer access

California's unauthorized access to a computer law, Penal Code 502(c) PC, makes it a crime to knowingly access a computer, computer network or computer system without permission to do so.²³

This offense is sometimes charged along with identity theft, in cases where the allegation is that the defendant hacked into or otherwise got access to someone else's email or internet account/profile in order to obtain personal identifying information.

Depending on the type and impact of the unauthorized computer access, this offense may be charged as either a misdemeanor or a felony.²⁴

4.6. Penal Code 530.5(e) mail theft

One subsection of Penal Code 530.5--subsection (e)--deals with the separate offense of California mail theft.²⁵

Mail theft occurs when someone steals or takes mail from a mailbox, post office or mail carrier, or obtains mail wrongfully through fraud or deceit, or knowingly receives or possesses stolen mail.²⁶ It is common for mail theft charges to be filed along with identity theft charges, when the allegation is that a defendant obtained personal identifying information from stolen mail.

Mail theft is a misdemeanor and carries a maximum county jail sentence of one (1) year.²⁷

Call us for help...

If you or loved one is charged with Penal Code 530.5 PC identity theft and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's identity theft laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.²⁸

Legal References:

¹ Penal Code 530.5 PC - California's identity theft law. ("(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, 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 pursuant to subdivision (h) of Section 1170. (b) In any case in which a person willfully obtains personal identifying information of another person, uses that information to commit a crime in addition to a violation of subdivision (a), and is convicted of that crime, the court records shall reflect that the person whose identity was falsely used to commit the crime did not commit the crime. (c)(1) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another 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. (2) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and who has previously been convicted of a violation of this section, 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 pursuant to subdivision (h) of Section 1170. (3) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of 10 or more other persons 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 pursuant to subdivision (h) of Section 1170. (d)(1) Every person who, with the intent to defraud, sells, transfers, or conveys the personal identifying information, as defined in subdivision (b) of Section 530.55, of another 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 pursuant to subdivision (h) of Section 1170. (2) Every person who, with actual knowledge that the personal identifying information, as defined in subdivision (b) of Section 530.55, of a specific person will be used to commit a violation of subdivision (a), sells, transfers, or conveys that same personal identifying information is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment. (e) Every person who commits mail theft, as defined in Section 1708 of Title 18 of the United States Code, 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. Prosecution under this subdivision shall not limit or preclude prosecution under any other provision of law, including, but not limited to, subdivisions (a) to (c), inclusive, of this section. (f) An interactive computer service or access software provider, as defined in subsection (f) of Section 230 of Title 47 of the United States Code, shall not be liable under this section unless the service or provider acquires, transfers, sells, conveys, or retains possession of personal information with the intent to defraud.")

See also 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.")

² See same.

³ See same.

⁴18 U.S.C. 1028 - The Identity Theft and Assumption Deterrence Act of 1998.

⁵ Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

⁶ Penal Code 530.5 PC - California's identity theft law, endnote 1, above.

⁷ Orange county criminal defense lawyer John Murray represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).

⁸ In re Rolando S. (2011) --- Cal.Rptr.3d ----, 2011 WL 3212879

⁹ Penal Code 530.55 PC - "Person"; "personal identifying information". ("(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. (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.")

¹⁰ See In re Rolando S., endnote 7, above.

¹¹ See 18 U.S.C. 1028 - The Identity Theft and Assumption Deterrence Act of 1998, endnote 3, above.

¹² See same.

¹³ See Penal Code 530.5 PC California's identity theft law, endnote 1, above.

See also California Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail. ("(a) Except in cases where a different punishment is prescribedby any law of this state, every offense declared to be a felony ispunishable by imprisonment for 16 months, or two or three years inthe state prison unless the offense is punishable pursuant tosubdivision (h) of Section 1170. (b) Every offense which is prescribed by any law of the state tobe a felony punishable by imprisonment or by a fine, but without analternate sentence to the county jail for a period not exceeding oneyear, may be punishable by imprisonment in the county jail notexceeding one year or by a fine, or by both.")

See also California Penal Code 672 PC - Fines where none prescribed. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

¹⁴ People v. Mitchell (2008) 164 Cal.App.4th 442, 455. ("In order to violate section 530.5, subdivision (a), a defendant must both (1) obtain personal identifying information, and (2) use that information for an unlawful purpose. ( People v. Tillotson (2007) 157 Cal.App.4th 517, 533, 69 Cal.Rptr.3d 42.) Thus, it is the use of the identifying information for an unlawful purpose that completes the crime and each separate use constitutes a new crime...[and at 457]...Section 530.5, subdivision (a), is committed each time an offender uses personal identifying information for any unlawful purpose. Contrary to defendant's argument, the first such fraudulent use did not immunize her from punishment for subsequent fraudulent uses. Defendant was therefore properly convicted on both counts 20 and 47.")

¹⁵ Penal Code 489 PC - Grand theft; punishment. ("Grand theft is punishable as follows: (a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, two, or three years. (b) In all other cases, by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.")

¹⁶ California Penal Code 490 PC - Petty theft; punishment. ("Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.")

¹⁷

¹⁸ See same.

¹⁹California Penal Code 182 PC - Conspiracy.

²⁰ See 18 U.S.C. 1028 - The Identity Theft and Assumption Deterrence Act of 1998, endnote 3, above.

²¹Penal Code 664 PC - Attempts, punishment.

²² See 18 U.S.C. 1028 - The Identity Theft and Assumption Deterrence Act of 1998, endnote 3, above.

²³ Penal Code 502 PC - Unauthorized access to a computer [sometimes charged along with identity theft].

²⁴ Same.

²⁵ Penal Code 530.5(e) - Mail theft [often charged along with identity theft].

²⁶ Same. See also 18 U.S.C. 1708.

²⁷ Same.

²⁸ Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's identity theft laws. Our Nevada law offices are located in Reno and Las Vegas.