In California, the crime of Identity Theft is most commonly punished by California Penal Code Section 530 and California Penal Code Section 530.5
California Penal Code § 530 states in relevant part:
Every person who falsely personates another, in either his private or official capacity, and in such assumed character receives any money or property, knowing that it is intended to be delivered to the individual so personated, with intent to convert the same to his own use, or to that of another person, or to deprive the true owner thereof, is punishable in the same manner and to the same extent as for larceny of the money or property so received.
California Penal Code § 530.5 states in relevant part:
(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b), of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, or medical information in the name of the other person without the consent of that person, is guilty of a public offense, and upon conviction therefore, shall be punished either by imprisonment in a county jail not to exceed one year, a fine not to exceed one thousand dollars ($1,000), or both that imprisonment and fine, or by imprisonment in the state prison, a fine not to exceed ten thousand dollars ($10,000), or both that imprisonment and fine.
(b) “Personal identifying information,” as used in this section, means the name, address, telephone number, health insurance identification number, taxpayer identification number, school identification number, state or federal driver’s license number, or identification number, social security number, place of employment, employee identification 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 identification number, address, or routing code, telecommunication identifying information or access device, information contained in a birth or death certificate, or credit card number of a person, or an equivalent form of identification.
(d) Every person who, with the intent to defraud, acquires, transfers, or retains possession of the personal identifying information, as defined in subdivision (b), of another person is guilty of a public offense, and upon conviction therefore, shall be punished by imprisonment in a county jail not to exceed one year, or a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.
In an effort to keep up with, or possibly more accurately catch up to, the rapid expansion of the internet and readily available personal information of citizens, California and Federal lawmakers have made the protection of victims of identity theft a top priority. Becasue prevention has many times proved to be an uphill losing battle with identity theft, lawmakers, police, FBI, state and federal prosecutors have aimed their focus more on a deterrence strategy and punishing those actually found guilty of identity theft more severely. In 1998, the Federal Identity theft and Assumption Deterrence Act was passed which included among many other provisions, penalties for identify theft in the form of large fines and up to 25 years in Federal Prison. Therefore, if you are arrested and charged under California Penal Code § 530, you will most likely be facing Federal charges as well and additional punishments.
In order to be convicted under PC § 530, the prosecution must prove beyond a reasonable doubt that the defendant (1) willfully obtained identifying information of the victim (2) without consent or authorization, and (3) used that information for an unlawful purpose or benefit.
There are many pieces of identifying information that would fall under this section including name, address, social security number, mother’s maiden name, password or pin number etc. With regards to the second element, if the victim is harmed because of the misappropriation their identifying information, the burden of proving such misappropriation was without their consent will generally be low. However, actually proving that it was the defendant that misappropriated the identity for their own gain or some other unlawful purpose will be a more difficult burden. Some common examples of using someone’s identity for an unlawful purpose include:
• using someone’s credit card information to purchase goods online,
• using one person’s information to perform a fraud on a third party,
• opening an account in another person’s name without their authority, or
• using someone driver’s license or identity without their consent.
A proper aggressive defense strategy can make it very difficult for the prosecution to prove this last element, that it was the accused that was actually the defendant that unlawfully used the identity of the victim. While possibly subject to receiving stolen property, if the accused is merely in possession of the goods purchased with the victim’s credit cards, this will not be sufficient to convict them of identity theft without more convincing evidence that they were the individual who actually used the credit cards to purchase the goods. If a third party is defrauded, as the only other witness in the crime, that third party might need to actually visually identify the defendant which will be virtually impossible if the fraud was committed online. Mere benefit from the fraud or misappropriation of identity is not in and of itself sufficient for an individual to be convicted of identity theft. Without actual proof that the individual was the one who stole the identity and used it themselves for an improper purpose, the prosecution will not have a sustainable case against you.
As stated above, under federal law, a person arrested for identity theft may be charged with a felony and sentenced up to 25 years in federal prison. Additionally, PC § 530 is what is known as a “wobbler” under California law, meaning that it may be charged as either a misdemeanor or a felony. If it is charged as a misdemeanor you could face up to 1 year in jail. If it is charged as a felony, you could receive a punishment of 3 years in state prison. For either a misdemeanor or felony charge the court will likely order that you pay restitution to the victim, plus court costs, fines and probation or parole. Additionally, if the identity of the victim was used to defraud or wrongfully obtain possession of property of another with the intent to deprive them of that property permanently, embezzlement or other forms of larceny will be added to the list of charges which will carry additional separate sentencing. However, they may not be charged with a crime of larceny and receiving stolen property for the same property. (Please see Grand Theft and Receiving Stolen Property for further information)
If the evidence and circumstances of the case do in fact provide the prosecution with a case sufficient to successfully convict an individual under PC § 530, the court will weigh several factors in determining whether to treat it as a felony or a misdemeanor and in determining the severity of sentencing. Such factors will include the degree of harm suffered by the victim, the monetary damage to the victim or defendant’s gain from the unlawful misappropriation, the sophistication of the crime or intrusion of the theft, and of course the past criminal history of the defendant. The court will balance all of these factors allowing one to outweigh another. A skilled and experienced defense attorney will exhaust all resources available to convince the court that their client does not fit the profile of an individual the law intended to punish with severity under this law. Many times a defendant with a clean record, in a point of weakness uncharacteristic of their general disposition will commit identity theft. In such cases, often times the prosecution can be persuaded to reduce the charges, request for minimum sentencing, or even have the charges dropped upon a promise by the accused to tender full restitution to the victim.
If you have been arrested and charged under PC § 530, it is imperative that you contact an aggressive attorney, skilled in the area of identity theft. The sooner you contact an identity theft lawyer in San Diego, the sooner they may counsel on your options and the available defense strategies. The days following your arrest will be a crucial period in terms of contacting the prosecution and negotiating the charges down, eliminating other more serious theft offenses, and getting in touch with the alleged victim to discuss terms of restitution payments which may result in having the charges dismissed all together. Whatever the facts specific to your case may be, it is imperative that you consult with an experienced attorney so that you may consult on the best avenue to take in ensuring your liberty and rights are protected. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through these difficult and delicate matters involving charges under PC § 530, along with other forms of identity theft, and many times had the charges dismissed before criminal proceedings even begin. If you or a loved one has been arrested and charged with identity theft, please feel free to contact the Law Office of Marc S. Kohnen for a free and confidential consultation about your options in this pressing issue.