Assuming another person’s identity and using it in a fraudulent or unlawful manner is a crime in the state of California. People who commit identity theft do so to steal money from someone, to pose as that person while committing other crimes, or to get revenge against someone they feel has wronged them. Identity theft is a crime that can result in severe consequences depending on how the stolen identity is used and whether multiple identities were stolen.
What Type of Crime Is Identity Theft?
In California, identity theft is known as a “wobbler” crime, which means it can be charged as either a misdemeanor or felony depending on the circumstances. Identity theft can also be considered a federal offense. It is also frequently classified a white collar crime. California treats each instance of identity theft as a separate case, meaning a person can face multiple charges of identity theft in addition to related crimes such as mail theft, fraud, or forgery.
Penal Code Section 530.5 of the California legislature outlines 4 different types of identity theft crimes:
- Obtaining another person’s identifying information and using it for illegal acts without their consent
- Stealing or keeping someone else’s personally identifying information without their consent, with the intent of committing fraud
- Giving someone else’s personally identifying information, either by selling it or transferring it to another party, without that person’s consent and with the intent of committing fraud
- Giving someone else’s personally identifying information, either by selling it or transferring it to another party, without that person’s consent and with the knowledge that the other party will use it to commit fraud
Crimes Related to Identity Theft
Identity fraud is often committed alongside other crimes that aid the person in reaching their goal, such as stealing money or impersonating someone. These include:
- False personation: California outlines false personation in Penal Code 529 PC, by which it is illegal for anyone to pretend to be another person and/or commit an act that may cause that person to become liable for a crime or debt.
- Forgery: Penal Code 470 PC in California outlines forgery as a crime committed when someone fakes another person’s signature or alters documents fraudulently in their favor.
- Credit card fraud: Sections 484E-J of the California Penal Code make it criminal for someone to use another person’s credit or bank card without their consent.
- Stealing mail: Mail theft is committed when someone steals another person’s mail from their mailbox or uses fraud to get their mail, as outlined in Penal Code 530.5E PC. This is committed in relation to identity fraud because it can allow the defendant access to a potential victim’s personally identifying information.
What Is Considered Personally Identifying Information Under the Law?
Our personally identifying information is readily available now more than ever. It can be easy to accidentally stumble on someone’s information and to obtain it without realizing. For example, if someone places their business card with personally identifying information in every package they send, people will have that information without seeking it out. Some examples of information that can be considered personally identifying in an identity theft case include:
- Birthdate
- Address
- Social Security number
- Credit card numbers
- Driver’s license ID
- Bank account information
- Health insurance information
- Passports
- Home address and personal phone numbers
- Employee ID
- Email accounts
- Birth certificates and death certificates
- Passwords for online accounts such as social media and online banking
Intent Alone Can Lead to an Identity Theft Charge
In order to successfully win their case, the prosecution must be able to prove that the defendant intended to steal someone’s identity and that they did so for an illegal purpose.
However, it is not necessary for the prosecution to prove that anyone suffered loss or was defrauded by the identity. Simply attempting to steal another person’s identity is enough to land someone with an identity theft conviction. The prosecution also needs to show that the defendant planned to use the stolen identity to commit some sort of fraud.
The law defines fraud as an act meant to give someone an illegal advantage or benefit or to cause someone else to suffer a loss, financial or otherwise. Some common examples of fraud in relation to identity theft are:
- Posing as another person to collect money from social programs, such as food stamps
- Stealing another person’s credit card information and using that information to make purchases online
- Applying for insurance under someone else’s name
- Funneling someone else’s tax refunds into a different account
In certain cases, identity fraud is committed with the intent of harming that person socially. For example, someone may pose as another person on social media and post harmful or embarrassing images or comments that could cause that person to lose their job, their relationship, or harm them in some other way.
Identity theft can also be committed without the act of stealing someone’s personally identifying information. If someone were to come into possession of someone else’s credit card on accident, they would be committing identity theft if they charged expenses to the card without the card owner’s knowledge.
Penalties for Committing Identity Theft
Because identity theft is a wobbler offense, penalties are assigned based on the severity of the crime in question. Factors that will be considered: how seriously the victim was harmed, how much monetary damage occurred, how sophisticated the crime was, and whether the defendant has a criminal history. In terms of the law, a sophisticated crime would be one that required high-level knowledge of the internet or specific tools that most people do not have access to.
Therefore, if someone receives a misdemeanor conviction for identity theft, they may be subject to:
- A 1-year county jail sentence and a fine of $1,000
However, since each count of identity theft is treated as an individual crime, the sentences can run into one another. Someone who stole the identities of 6 people may end up with a 6-year sentence. Someone who is charged with a state felony for identity theft may be subject to:
- A 3-year jail sentence for the first count of identity theft and an additional year for each remaining violation of Penal Code 530.5.
In addition to jail time and fines, someone convicted of identity theft may be required to pay restitution to the victim. Such payments are meant to provide compensation for losses, whereas fines from the court are meant to serve as a punishment for the person who committed identity theft.
Immigrants may face an additional consequence if convicted of identity theft with fraud. California law states that, if an immigrant commits a crime that involves moral turpitude, they may be deported or considered inadmissible to the country.
Common Defense Strategies for Identity Theft
In today’s technologically advanced world, it’s quite easy to commit identity theft unintentionally, even unknowingly. Given this, there are some legal strategies that can be useful if the case goes to trial:
- No fraudulent intent or criminal purpose: For someone to be convicted of identity theft, it must be proven that they intended to use the victim’s identity for an illegal purpose. If it can be shown that the defendant originally had such an intent and then did not act on it or changed their minds, they may be able to have their charges dropped.
- The other party provided consent: If it can be proven that the defendant received consent to use the other party’s personal information, then no crime was committed. For example, if the defendant had a reasonable belief that the other party consented to their credit card being used by the defendant, the defendant did not commit a crime by using it. However, if the consent was for one purchase and the defendant made multiple, criminal intent will be called into question.
- Illegal search and seizure: If law enforcement seized the defendant’s computer or any other device from their personal property without a proper search warrant and probable cause, that information may not be used in a court of law.
Contact an Attorney Today
If you have been arrested for identity fraud and need legal advice, contact The Law Office of Brian C. Andritch today. Our attorney is dedicated to protecting the rights of our clients fighting tirelessly on their behalf. With over 18 years of experience litigating criminal charges, our firm has the skill to help fight your identity theft charge. Contact us today at (559) 484-2112 or via our contact form.
