Thanks to the modern information age, identity theft is a growing offense in California. The information age has made it too easy for personal info to be stolen through electronic means. Consequently, prosecutors pursue the maximum possible punishment if a person is charged with this crime to deter others from engaging in similar conduct. If you have been arrested or charged, you want to hire a skilled and knowledgeable attorney as soon as possible to fight for rights and help you prove your innocence.
At California Criminal Lawyer Group, we understand how easy it is to be falsely accused of identity theft when the actual identity thief is nowhere to be found. If you have been charged with this crime in Santa Ana, we can mount a solid defense strategy for you and provide aggressive representation to maximize your chances of winning your case. Call us as soon as you have been charged to share the details of your case.
Defining Identity Theft
If you obtain and use someone else's info for a fraudulent or unlawful purpose, you will have committed the crime of identity theft and will be charged under PC (Penal Code) 530.5. We have four primary forms of PC 530.5 violation:
- Acquiring and using someone else's info without their permission for unlawful purposes.
- Acquiring and using someone else's info without their permission to perpetrate fraud
- Conveying, transferring, or selling someone else's info without their permission intending to perpetrate fraud
- Conveying, transferring, or selling someone else's info without their permission, aware the person to whom you are giving the information will use it to perpetrate fraud.
Simply obtaining another party's info might not sustain an identity theft conviction.
Elements of The Crime
For the judge to find you guilty of 530.5 PC violation, the prosecution must prove beyond any reasonable doubt that you willfully obtained and used:
- Someone else’s identifying info in either
- An illegal manner or
- With fraudulent intention
Someone else’s information comprises their:
- Name, address, birth date, phone number,
- Tax identification or social security number,
- Passport information or driver’s license number with the DMV (Department of Motor Vehicles),
- School or employee identification number,
- Credit or bank information,
- Mother’s maiden name,
- Info contained in death and birth certificates,
- Financial details on IRS tax returns,
- Health insurance number,
- Savings account number/checking number or PIN,
- Alien registration number,
- Government passport number,
- Debit or credit card number, and
- Electronic data (I.D number, routing code, address)
Using information for unlawful purposes entails illegally obtaining or trying to obtain medical information, services, goods, real property, credit, or money. Fraud per California statute is described as intentional acts that lead to an unjust or unlawful gain for the accused or harm someone else or cause them a loss. And, you willfully commit action when you do it purposely or willingly.
For example, Sheryl obtains a restraining order against her former boyfriend after a domestic violence case. She then moves to another place because she is afraid of her boyfriend. The boyfriend hires a private investigator to track down Sheryl's new location because he plans to violate the restraining order. In this case, Sheryl's ex-boyfriend may be charged with identity theft since he obtained personal info for an illegal purpose.
The definition of illegal purpose is not limited to financial motives. Using personal info to facilitate restraining order violation is considered an unlawful purpose under California law.
Remember that to show a person is guilty under this law, the prosecution does not need to prove that the victim was actually defrauded or suffered a loss.
For example, Mary steals her friend's credit card and bank information, which she intends to use to buy a new laptop for herself. In this case, Mary has committed identity theft. She did an intentional act meant to cause her friend to suffer monetary loss. She is guilty of PC 530.5 violation even if she fails in her plan.
Under PC 530.5, you only need to have the intention to commit the identity theft crime. The prosecution can prove intent by showing that you obtained someone else's identifying info due to the nature of your job then intended to use that information to gain an advantage for yourself.
For instance, a waiter or store clerk who possesses someone else's credit card info by having retained a copy of a receipt or noted it down could be assumed to have had the intent to commit identity theft.
Identity Theft Through Hacking
Considering the current advancements in technology and widespread internet availability, hacking is rampant. A person can commit the identity theft offense by having unapproved access to your data, computer, or computer network.
Hacking personal info can occur through computer systems or data manipulation. A person may also steal your login details and log into your system with fraudulent intent without you knowing.
PC 502 describes hacking. Per this law, it is unlawful to intentionally and without consent access another person’s computer to change, delete or destroy information intending to:
- Unlawfully obtain or control property or money
- Design or execute a strategy to deceive or defraud
Doing these acts could subject you to identity theft prosecution.
The Penalties for Identity Theft
Violating PC 530.5 is considered a wobbler crime. A wobbler refers to an offense that the prosecution can prosecute either as a felony or misdemeanor based on the facts in the case and the accused’s criminal history. If you have been charged with a misdemeanor offense, you will face one thousand dollars in fines, a county jail term of a year, and summary probation upon a conviction. And if charged with a felony, you will face felony probation, up to ten thousand dollars in fines, or a maximum prison sentence of three years upon a conviction.
Federal law punishes the identity theft crime more severely compared to California law. Per the Identity Theft and Assumption Deterrence Act of 1998, it is illegal to present another person’s identification documents, transport, sell, buy, or produce equipment to forge documents, and knowingly pass on stolen identification documents. If found guilty under federal statute, you will be subject to up to thirty years in federal prison and hefty fines.
It is critical to keep in mind that under both California law and federal law, each use of someone else’s info counts as a distinct crime, even if it is committed against the same victim.
Being convicted of identity theft under the state’s and federal law may have adverse immigration repercussions. California statute says that an immigrant can be labeled as inadmissible or deported if they commit an aggravated felony or a crime that involves moral turpitude. The same state’s law also dictates that identity theft can be considered a crime that involves moral turpitude if fraud is involved. This means violating PC 530.5 with fraudulent intent will result in negative immigration consequences.
An identity theft conviction can also lead to you losing your gun rights. California law states that a convicted felon cannot possess or own a firearm. Remember that violating 530.5 PC is considered a wobbler crime, and the prosecution can try it as a felony. If found guilty of a felony 530.5 violation, you will lose your gun rights.
Other Consequences for Identity Theft
The repercussions of being found guilty of identity theft go beyond criminal penalties. Even after you have served your sentence, a criminal record will remain, which will affect your life. Having a criminal record may render you untrustworthy, which means employers may use it to disqualify you when looking for employment.
Renting an apartment could also become challenging if you have a criminal history. Landlords conduct a background check on their prospective tenants to be certain they are people they can trust. If the background check indicates you have been convicted of a crime before, the landlord may deny you an apartment.
When found guilty of felony identity theft, you will lose your right to vote while on probation or serving your prison term. However, your right to vote will automatically be restored after serving your probation or prison sentence.
You may also be disqualified from serving in the army if you have a criminal conviction record. But if you acquire a waiver, you may enter the military. If you already serve in the U.S military and are found guilty of an offense, you may be disqualified from receiving military benefits.
A criminal conviction will also lead to you losing your civil rights, such as serving on a jury. Thus, if the judge has found you guilty of an offense and you wish to serve on a jury, you want to speak with an experienced criminal lawyer to reinstate your civil rights to participate in civic duties.
A felony identity theft conviction can also prevent you from obtaining a professional license. If you already have a professional license, you could lose it when found guilty of a felony offense, which could destroy your career.
With the above repercussions in mind, you want to do all you can to avoid being convicted if charged with identity theft.
Expunging an Identity Theft Conviction Record
Luckily, you can have your conviction record expunged if found guilty of identity theft. However, for the expungement to happen, you must have successfully served the imposed jail term or probation sentence, whichever applies in your case.
A conviction record expungement is beneficial since you will avoid most of the challenges accompanying the existence of a conviction on your criminal history.
Legal Defenses Against PC 530.5 Charges
You can beat identity theft charges by mounting a compelling legal defense strategy. Common legal defenses you can argue with the help of your criminal defense lawyer are:
There Was No Illegal Purpose
Whereas you might have satisfied an identity theft element by simply possessing someone else's identifying info without their consent, you need to have used it for unlawful purposes. By this, it means you can assert that you were not going to use the information you had to violate the law. It could be that you took particular info to create a report, for example.
It Was Not a Willful Act
Also, remember, you are considered to have committed identity theft only if you took some purposeful act to obtain personal info. You can argue this defense and say that you did not acquire certain information purposefully. It could be that you accessed another person’s information accidentally, for instance.
You Did Not Have the Intention to Defraud
Based on the circumstances surrounding your case, the prosecution may need to demonstrate you performed your act intending to defraud for you to be convicted. By this, it means you can say you did not act with the specific intent to defraud. You could argue that although you originally had the requisite intent to defraud, you abandoned it along the way.
For example, if the credit card numbers you wrote down from your job as a waiter were discovered in your purse but had written them down six months earlier and never used them, you have not committed any offense because you apparently aborted any intentions of utilizing them.
You Are a Software Provider or an Interactive Computer Service Technician
Federal law against identity theft exempts software providers or interactive computer technicians from possessing personal identifying info because usually it is required as part of their job to provide computer services or repair them. However, they must not intend to use, transfer, or sell the info with the requisite intent to defraud or for unlawful purposes. If you are an access software or computer services provider accused of identity theft, you can argue this defense.
Illegal Search and Seizure
The Fourth Amendment to the United States protects every U.S citizen from unreasonable searches and seizures by the police. This means the police cannot search any property in your possession or your house, vehicle, or office without a legal search warrant and probable cause.
If the police obtained proof of your identity theft crime after conducting an unlawful search and seizure on your person or property, your lawyer could file a motion to suppress and have the evidence excluded from your case. By this, it means the judge can end up reducing or even dismissing your charges.
Mistaken Identity
The prosecutor can charge you with identity theft based on mistaken identity. Mistaken identity cases are prevalent where hacking is involved. A hacker could steal the logins of your computer system to use them to conceal their identity once they commit computer fraud. If you are in this situation, speak with a lawyer right away. The lawyer will investigate the allegations and submit facts to show someone used your logins without you knowing.
False Accusations
Most established financial institutions simply write off losses when one of their customers alleges to be an identity theft victim. Due to this, a person could find themselves accused falsely of PC 530.5 violation by someone else (for instance, an ex-boyfriend, ex-girlfriend, or ex-roommate) who is merely trying to evade their debts.
You Had Permission
If you had reason to believe you had permission to use another person's credit card to buy services or goods, you have not committed any crime. However, the person may have permitted you to use their credit card only once to buy a given item. If you used the credit card more than once, you did not have consent. Also, you cannot use someone else's identifying info to acquire benefits for yourself, like public assistance, even with that person's permission.
Crimes Related to Identity Theft
We have four primary offenses related to identity theft. They are:
PC 530.5e, Mail Theft
Under PC 530.5(e), you commit the mail theft crime if you:
- Steal or take mail from a receptacle or mailbox
- Use deception or fraud to acquire mail from any of the sources mentioned above
- Destroy or hide a stolen mail
- Remove the contents of any stolen mail
Remember that people at times commit the crime of mail theft to have access to someone else's identifying info to commit identity theft.
Mail theft is a misdemeanor crime punishable by up to one thousand dollars in fines and a county jail sentence of one year. Note that the judge has the power to sentence you to misdemeanor probation instead of a jail sentence.
PC 470, Forgery
Per PC 470, you commit forgery when you fraudulently alter certain documents or falsify a signature. Note that you can be prosecuted under both forgery and identity theft laws based on the specific facts surrounding your case.
Forgery is considered a wobbler offense. If convicted of a misdemeanor, you will be subject to summary probation, up to one thousand dollars in fines, and a county jail sentence for a maximum of one year. If convicted of a felony, you will be subject to up to ten thousand dollars in fines, felony probation, and a county jail sentence for a maximum of three years. Note, however, that violating this law is prosecuted as a misdemeanor only if the document you forged is a money order, check, or any other similar instrument, and that instrument is valued at nine hundred and fifty dollars or less.
Credit Card Fraud
PC sections 484 (e - j) make it illegal for you to commit access card, debit card, or credit card fraud. Some of the offenses prohibited under these PC sections are:
- Using a stolen debit card to buy goods
- Using a personal credit card, aware that it is linked to an account that has no money in it
- Using another person’s debit or credit card without their consent.
PC 484(e) is considered grand theft and is prosecuted as a wobbler offense. The maximum punishment is a prison sentence for a maximum of three years. Violating PC 484f is deemed a forgery and is charged as a wobbler crime. A misdemeanor conviction carries a maximum of a year in jail, while a felony conviction is punishable by a prison sentence of a maximum of three years.
Violating PC 484g is prosecuted either as petty theft or grand theft. As mentioned above, felony grand theft is punishable by a maximum of three years in prison. Petty theft is prosecuted as a misdemeanor, punishable by a jail sentence of up to a year upon conviction.
Violating 484h PC is prosecuted either as petty theft or grand theft. The potential penalties upon a conviction are the same as those listed under PC 484g. Most PC 484i violations are wobbler crimes. The severest punishment is for felony charges with a maximum of three years of incarceration. Violating PC 484(j) is prosecuted as a misdemeanor. The offense is punished by a county jail sentence of a maximum of six months.
Note that you can be charged with credit card fraud and identity theft simultaneously. Consider this example: a post office accidentally delivers someone else’s new credit card to Eddy’s address. Eddy receives the card and realizes it is in someone else’s name. He activates the card and uses it to make multiple purchases. Eddy could be charged with both identity theft under PC 530.5 and credit card fraud under PC 484g
PC 529, False Personation
PC 529 is the state’s law that describes the false personation crime. This law makes it illegal to:
- Personate another person falsely (pretending to be that person), and
- Do any other thing that may cause the individual to be responsible for prosecution or a lawsuit, become liable to pay cash, or which may cause you to gain some advantage from the impersonation.
Violating PC 529 is considered a wobbler crime. If convicted of a misdemeanor, you will face up to ten thousand dollars in fines, a county jail sentence of a maximum of a year, and misdemeanor probation. A felony conviction carries up to ten thousand in fines, felony probation, and an incarceration period of three years.
Find an Experienced Identity Theft Santa Ana Criminal Defense Lawyer Near Me
A conviction of identity theft comes with harsh consequences. If you are under investigation for this crime or have already been charged, you want to contact a skilled and knowledgeable criminal defense lawyer right away. At California Criminal Lawyer Group, we have helped clients charged with identity theft or any other criminal offense in Santa Ana, CA, fight the charges against them. We may be capable of negotiating with the prosecution for lowered charges but can also mount a defense strategy that is instrumental to your case. Call us at 714-844-4151 for a free, confidential consultation and share your case details.
