Technological advances have made private information more accessible. Consequently, identity theft cases have become increasingly common. The authorities are going to great lengths to prevent identity theft offenses. California is one of the states with the highest rate of identity theft incidents in the country, with over a million complaints yearly. The prevalent nature of the offense and the possible damage to the involved victims have made prosecutors aggressively prosecute identity theft.
If you have been accused of identity theft, you should fight to protect your rights so that you are not wrongfully convicted. Contact a lawyer immediately to explain your situation, and they will help you. At Los Angeles Criminal Attorney, we represent clients charged with identity theft crimes in various contexts. We will provide you with the best protection of your rights and expert legal defense that could yield the best possible outcome. Identity theft laws are complex, but there are several defenses we can argue to help you avoid severe penalties.
Identity Theft Overview
Identity theft is a crime defined under PC 530.5. You commit this criminal offense when you obtain personal identifying details of another and use them for any illegal purpose, for example, to acquire or try to acquire goods, services, credit, medical info, or real property without the person’s consent. Identity theft can occur in four different ways. It can happen when you:
- Willfully obtain another’s personal identifying details and use them for any illegal purpose without their consent,
- Acquire or retain possession of another’s personal identifying info without their permission to commit fraud,
- Sell, transfer, or provide personal identifying info of another without their permission intending to commit fraud, or
- Sell, transfer, or provide the identifying details of another, knowing that the details will be utilized to commit fraud.
Personal identifying info under this law includes details such as:
- Another’s name, telephone number, address, date of birth
- Driver’s license number with the California DMV and passport info
- Social security and tax identification numbers on a person’s social security card
- Employee identification and school identification numbers
- Credit card numbers, debit card numbers, or bank account info
- Mother’s maiden name
- Details contained in death and birth certificate
- Financial info on IRS tax returns
- Alien registration number
Penal Code 530.5 states that you cannot willfully take another’s personal identifying details for an illegal purpose. You commit an activity willfully when you do it on purpose or willingly. An illegal purpose entails unlawfully retaining possession or trying to retain possession of another’s medical details, real property, services, goods, or credit. The D.A does not need to demonstrate that you acted with fraudulent intent to be convicted under Penal Code 530.5.
The word ‘fraud’ means an intentional act designed to obtain an unlawful or unfair gain, benefit, or advantage or cause someone to suffer losses. Apparent instances of fraud under identity theft include:
- Funneling another's tax refunds into a different account
- Using another’s credit card without their consent
- Applying for medical benefits with another’s identifying information
- Forging a signature on a check
- Posing as someone else to collect funds from social programs like food stamps
- Applying for insurance under another's name
Note that the prosecution does not have to show that someone was indeed defrauded or suffered losses for you to be convicted of violating Penal Code 530.5. The prosecutor only needs to show that you possessed the intent to obtain unlawful or unfair gain or cause the victim to suffer losses. And thus, just attempting to commit identity theft is enough for you to be charged and sentenced.
The D.A can prove intent by demonstrating that you obtained the victim’s personal identifying info due to the nature of your job and then intended to use it to acquire a benefit for yourself. For instance, a store waiter or customer who has another’s credit details by having retained a copy of a receipt or noted them down may be assumed to have the intention to commit identity theft.
In most identity theft incidents, a person assumes another's identity to steal funds. Though it is a longstanding offense, identity theft laws have evolved. The rise of the internet has changed how people steal identities. Consequently, California statutes now restrict particular digital activities that can result in identity theft.
Defending Against Identity Theft Accusations
There are various defenses you can use if accused of ID theft. They include:
Unlawful Search and Seizure
Police officers cannot randomly search your computer, phone, or anything else in your possession or within your office, vehicle, or residence without a legitimate search warrant. If your items were seized in violation of your right against illegal search and seizure, your lawyer could file a motion to suppress any incriminating evidence the police took so it does not be used against you.
You Had Permission
If you had reason to believe you had permission to use another’s credit card or any other information to purchase services or goods, you have not committed any offense. However, the ‘someone’ might have authorized one use of their information to purchase a particular item. If you used their info more than once, then you did not have consent. Also, you cannot use another’s identifying details to secure yourself benefits like public aid even with the person’s consent.
Lack of Fraudulent or Criminal Intent
Whereas you might have met an identity theft element by simply possessing another’s identifying detail without permission, you must have intended to utilize it for an illegal purpose. If you argue that you might have initially had unlawful intent but ditched it, the judge should not find you guilty. For example, suppose the credit card number you noted down from your work as a waiter was discovered in your purse, but you had written it down six months earlier and never used it. In that case, you have not committed any crime because you ditched any plan to utilize them.
You Are an Interactive Software Provider or a Computer Service Technician
These employees are considered exempt from having personal identifying info because it is frequently a requirement as part of their duty to offer computer repair or other computer-related services. However, you need not have intended to transfer or use the information for fraudulent or unlawful purposes.
Someone with an ill motive against you may make wrongful claims for revenge. The person may plant stolen identity information, and when the authorities conduct a search, the info is found with you. If this is what happened in your case, your lawyer can assert the false allegations defense.
However, arguing someone else framed you is not enough. Your lawyer will have to request to interview the accuser to establish their vendetta for making the accusations. They will also need to review all the evidence and claims the prosecution has submitted to provide facts that show the accuser set you up. Successfully arguing this defense may lead to the judge dropping your case.
Witness misidentification may lead to you facing identity theft charges. Mistaken identity is common in cases involving hacking. A hacker could steal the logins of your computer to conceal their identity once they commit computer fraud. If you are not the actual culprit of the identity theft in question, your lawyer may be able to help you by arguing the mistaken identity defense. The lawyer will first have to investigate the case and submit facts before the court to show that the real culprit used your login information without your consent or knowledge.
It Was Not a Willful Act
Remember that one of the elements of identity theft the prosecuting attorney must prove for a conviction to occur is willfulness. The judge or jury will convict you if you purposely obtained another’s identifying information. But you are not guilty if the identifying information was in your possession by accident. Your lawyer will have to present circumstantial evidence or facts to demonstrate that your act was not deliberate.
No Probable Cause
The Fourth Amendment to the United States Constitution provides that law enforcement officers must have probable cause that you have committed an offense before they arrest or detain you for the same. If you were arrested for identity theft and the arresting officer did not have any probable cause, the judge may exclude any proof the officers obtained after the improper arrest from your case. The exclusion may lead to the reduction or dismissal of your charges.
This legal defense applies to a case where you were accused of ID theft after a confession. The state's law provides that law enforcement may not resort to overbearing measures to coerce a confession. If you can show law enforcement coerced you into confessing to an offense you did not commit, the judge can strike out the admission from the prosecution's evidence or drop the case altogether.
Value of Services or Item Stolen was Below $950
Whether you are accused of a felony or misdemeanor may be based on the worth of the goods stolen. If your lawyer can help you prove it was below $950, you might only be subject to misdemeanor charges.
Penalties for Identity Theft
Identity theft is a wobbler. A wobbler is a violation that the prosecuting attorney can try as a felony or misdemeanor based on the defendant’s criminal history and the specific facts surrounding the case. If guilty of a misdemeanor, you will face informal probation, not more than one thousand dollars in fines, and time in jail for a maximum of one year. If found guilty of a felony, you will be subject to felony probation, up to ten thousand dollars in fines, and imprisonment for a period not exceeding three years.
A conviction of identity theft may also have adverse immigration consequences if you are an alien. Per California law, a legal alien can be marked inadmissible or deported if convicted of an aggravated felony or a crime of moral turpitude. The same state law classifies identity theft as a crime of moral turpitude if fraud is involved. This means that identity theft crime with fraud involved will produce an adverse immigration outcome.
Luckily after a conviction, you can have your identity theft criminal record expunged. To qualify for an expungement, you must first complete a jail term or probation, whichever applies. Criminal record expungement is beneficial because you will avoid most of the challenges caused by a guilty verdict on your criminal history.
A conviction of identity theft may also cause you to lose your gun rights. Per California law, convicted felons are prohibited from possessing or owning a firearm. Remember that violating Penal Code 530.5 is considered a wobbler offense, and the prosecuting attorney can try it as a felony. You then will lose your firearm rights if convicted of a felony PC 530.5 violation.
Identity Theft at Federal Level
Identity theft is also a federal crime codified under Title 18 U.S.C 1028. You may be convicted under the federal identity theft statute if you engage in these acts:
- Knowingly transferring, possessing, trafficking in, or producing equipment used to generate false identity documents
- Knowingly presenting another’s identity card
- Knowingly transferring (providing or selling) a stolen I.D card
If found guilty of identity theft under federal law, you will be subject to a period not exceeding thirty years in federal prison and a fine of thousands of dollars. It is worth pointing out that every single use of someone else’s personal identification information counts as a distinct crime under California and federal law, even if it is against the same victim.
Crimes Related to Identity Theft
Four crimes are related to identity theft. They are:
Penal Code 529, False Impersonation
California's 529 PC criminalizes false impersonation. False impersonation means:
- Personating another falsely (pretending to be them) and
- Doing anything else that may lead to the person facing a criminal charge or civil lawsuit, becoming responsible for paying money, or which may cause you to somehow gain from the impersonation.
False impersonation is a wobbler. If convicted of a misdemeanor, you will face summary probation, a jail sentence for a year, and up to ten thousand in fines. And if convicted of a felony, you will face formal probation, a prison sentence of three years, and a fine of up to ten thousand dollars.
Credit and Debit Card Fraud
PC 484j, 484i, 484h, 484g, 484f, and 484e all criminalize a person committing debit card access card or credit card fraud. Examples of offenses under these Penal Code sections are:
- Using a stolen debit card to buy goods
- Using your credit card aware that it is linked to a bank account that has no money in it
- Using another's debit/credit card without their consent
Violating PC 484j is a misdemeanor offense punishable by time in jail for a period not exceeding six months.
Most PC 484i violations are wobblers. The most severe punishment includes a felony charge with a period not exceeding three years in prison.
Violating PC 484h is considered either petty theft or grand theft. The potential penalties are up to three years in prison for felony grand theft and one year in jail for petty theft.
Violating PC 484g is deemed either petty theft or grand theft. The most severe charge for grand theft is a felony punishable by imprisonment for three years. Petty theft is prosecuted as a misdemeanor, punishable by a county jail sentence of one year.
Violating PC 484f is considered a forgery and is prosecuted as a wobbler. A misdemeanor carries up to a year in jail, while a felony will subject you to time in prison for three years.
Violating PC 484e is considered grand theft and is charged as a wobbler. The maximum sentence is imprisonment for three years.
Penal Code 470, Forgery
You commit forgery under 470 PC when you fraudulently alter particular documents or falsify a signature. You can face both forgery and identity theft charges based on the specific facts of your case.
Forgery is considered a wobbler offense under California law. If convicted of a misdemeanor, you will face informal probation, time in jail for a maximum of a year, and up to one thousand dollars in fines. And if convicted of a felony, you will be subject to formal probation, imprisonment for not more than three years, and a fine not exceeding ten thousand dollars.
Penal Code 530.5(e), Mail Theft
Per PC 530.5e, mail theft occurs when you:
- Destroy or hide a stolen mail
- Remove the contents of a stolen mail
- Use deception or fraud to obtain mail from a receptacle or mailbox
- Steal or take mail from a receptacle or mailbox
People sometimes commit mail theft so they can access personal identifying info to commit identity theft.
Mail theft is a misdemeanor offense punishable by time in jail for a year and a fine not exceeding one thousand dollars. The judge may opt to sentence you to probation instead of incarceration.
Collateral Consequences of Identity Theft
A conviction of identity theft can cause you more than criminal penalties. Even after you successfully serve your sentence, a criminal record remains unless you expunge it. This record may negatively affect your life. If you have a criminal background, most people will consider you untrustworthy. This means employers may use the record as grounds to disqualify you if you are searching for employment.
Renting an apartment can also be challenging if you have a criminal background. Most landlords conduct background checks to see how trustworthy their tenants will be. If the background check reveals that you have a prior conviction, the landlord may turn down your request to rent their apartment.
If found guilty of felony ID theft, you will lose your right to vote while serving your probation or prison sentence. However, the rights will be restored automatically when you successfully do the probation or prison sentence.
You also risk permanently losing your firearm rights if convicted of felony ID theft. This means you will not be able to buy, own, or possess a gun for life unless the ban is lifted.
An identity theft conviction can also lead to losing your right to serve as a jury member. If found guilty of ID theft and you want to be a jury member, you must speak with a lawyer and petition to have this civil right restored so you can participate in civic duties.
A felony identity theft conviction can also cut your aspiration to serve in the military short. But if the secretary of defense grants you a waiver, you can join the military. If you are already a military member and have been pronounced guilty of felony identity theft, you will be disqualified from receiving a military pension.
Being convicted of a felony identity theft can prevent you from acquiring a professional license. If you are an already licensed professional, you can lose your license, which could destroy your career.
Considering the effect of the above consequences on your life, you want to do everything legally possible to avoid a conviction. If you cannot prevent a guilty verdict, consider expunging your conviction record after successfully serving your sentence with the help of an experienced criminal defense lawyer.
Find a Skilled Criminal Defense Lawyer Near Me
If you are being investigated for identity theft or have already been charged, you want to consult with an experienced criminal defense attorney to increase the chances of avoiding or reducing the penalties of a conviction. At Los Angeles Criminal Attorney, we may be able to negotiate with the District Attorney for reduced charges. We can also build a defense that proves instrumental to your case. We may be able to cast reasonable doubt on the prosecution's evidence and elements of the crime, which may convince the judge to drop the case. We provide quality legal representation for any form of PC 530.5 violations throughout Los Angeles. Call us at 424-333-0943 for a consultation and case evaluation.