Identity Theft

What Is "Identity Theft?"

While the two words identity theft are well known and much on the public mind in this "information age" in which we live, most of us do not know the details about the actual crime and definition of identity theft. For example, while identity theft is quickly associated with Internet fraud, it is not always realized that forging a signature on a paper check or unlawfully using a credit card are also examples of identity theft.

Under California Penal Code section 530.5, identity theft is defined as any unlawful taking or use of another person's personal identification information so as to defraud that person of money or property and benefit oneself financially.

Whether it is money, commercial services, products, real estate, medical services, or anything else of value stolen; and whether it be by means of credit card, debit card, checks, or food stamps; and whether it be in person or while "hiding behind a computer," it makes no difference — it is still identity theft.

Sometimes, identity theft is committed to inflict a loss on another out of spirit of pure revenge; sometimes, it is done to escape being punished for a crime by posing as another person while committing that crime; but usually, identity theft is done simply to obtain financial gain.

Identity theft can involve not only the actual use of others' personal information, but also acquiring it, storing it, selling it, or transferring it without the owner's knowledge and consent.

The information stolen can be a variety of things, including: access card numbers and expiration dates, bank account information, social security numbers, medical data, physical addresses, and more. So long as it is illegally possessed/used and there is a fraudulent intent involved, it constitutes identity theft.

What Must the Prosecutor Prove?

Under Penal Code section 530.5, the prosecution must prove the following elements of the crime of identity theft beyond all reasonable doubt in order to gain a conviction:

• The defendant unlawfully acquired, possessed, stored, bought/sold, or transferred another person's personal identification information.
• The defendant acted without the knowledge and/or consent of the person whose personal information he made use of.
• The defendant acted knowingly and willfully in his illegal actions.
• The defendant acted while having a fraudulent intent.

Willfully - In that the defendant must have acted "willfully," it is simply to say that he did what he did on purpose. This kind of intentionality need not imply that the information in question was actively sought out. It could very well be that it was initially stumbled upon. But if the defendant decided to accept that information and then misuse it, it was a willful acquisition. Thus, if one accidentally comes across someone else's email password and then decides to keep it and later decides to access their email and send out emails to that person's friends posing as the true owner of the email address, it is identity theft.

Personal Information - In the modern world, personal information can be numerous different things. Tax ID numbers, employee ID numbers, dates of birth or death, driver's license numbers, passport numbers, green card numbers, and telephone numbers can function as personal ID information as easily as credit card and bank account numbers.

Fraudulent Intent - Fraudulent intent denotes any act whereby one obtains or seeks to obtain illegitimate gain at the expense of another person or entity on whom an undeserved loss is inflicted. Normally, fraud moves in the financial realm, it being money or things money can buy that are defrauded of another person, but really, it can be anything.

Unlawful Purpose - Also of importance is the fact that an unlawful purpose need not equate an attempt to commit a criminal offense. Even a violation of California's Civil Code is unlawful in this sense.

Possible Penalties for Identity Theft

In California, Identity Theft (PC 530.5) is a wobbler offense, meaning that it can be charged as either a misdemeanor or a felony, depending on the facts of the particular case, on how much money the defendant allegedly defrauded or attempted to defraud, and on the defendant's past criminal record.

When charged as a misdemeanor, identity theft is punishable by:

• Up to 12 months in county jail.
• A fine of up to $1,000.

When charged as a felony, identity theft is punishable by:

• 16 months to 3 years in jail.
• A fine of up to $10,000.

It is also important to recognize that someone can be convicted of and punished for identity theft as outlined above for each particular violation. Thus, even if someone stole personal information from multiple people or multiple times from the same person, he or she could have multiple counts of identity theft and a very severe overall sentence.

And those convicted of identity theft are often also convicted of related offenses, which add yet further punishments.

Finally, it is possible to be prosecuted under United States Code Title 18 Section 1028 for identity theft, adding the penalties for a federal offense to the state-level sentence. Under federal law, presenting someone else's ID to make others believe it is your own, transferring stolen ID documents, and selling/buying machinery to produce fake IDs is also covered; and conviction under USC Title 18 Section 1028 is punishable by hefty fines and up to 30 years in federal prison.

Common Defense Strategies

At Leah Legal Criminal Defense, we employ a number of specific defense strategies in identity theft defense cases and have acquired, over the years, a long track record of successful resolution of these types of cases, whether that means an acquittal, a dismissal based on evidence being declared inadmissible, or a reduced charge or sentence that is part of a negotiated plea. The key is winning the best possible outcome to each case.

To accomplish this, we always custom-build every defense to the precise needs of the particular case; but undeniably, there are basic types of defenses that frequently recur in identity theft cases. These include:

1. Lack of Unlawful Purpose: In order to be guilty of identity theft under PC 530.5, there must have been an unlawful purpose in the illegal acquisition of another person's personal information. It is not required that the information already has been used, but unless it can be shown that you intended to use it in an illegal and fraudulent way, you cannot be convicted of identity theft. Closely related to having an unlawful purpose in the statute is the nearly indistinguishable idea of fraudulent intent. It is, ultimately, intent (the state of one's mind) that makes it identity theft rather than simply the taking or possessing of information.
   
   
2. False Accusations: In some cases, a false accusation of identity theft may arise because someone has a grudge against you and wants to take out revenge by accusing you of this crime. For example, this could occur if a couple agreed to share a credit card, but after breaking up, the actual cardholder retroactively accused their former intimate of identity theft for having used his or her credit card. Or, it could be a false accusation occurs due to circumstantial evidence and the victim jumping to wrong conclusions. Finally, mistaken identity can bring about false accusations, since the real ID thief may be hiding himself (or even framing the defendant).
   
   
3. You Are a Computer: Yes, this defense is spelled out right in PC 530.5f and specifies that an "interactive computer service/software provider" cannot be guilty of identity theft. However, if the provider obtains or uses personal identification information while having an intent to use it fraudulently, then such providers can be prosecuted like any other person or business entity.

Other Related Offenses

Identity theft is a crime that normally has other crimes charged along with it, the reason being that stealing personal information is typically done for the purpose of committing other crimes. Thus, credit card fraud, insurance fraud of various types, forgery, Internet fraud, and the crime of false personation are often charged alongside identity theft.

Besides these, other related offenses include:

1. Grand Theft or Petty Theft (PC 487/484): As identity theft is done, usually, for the purpose of stealing something else of monetary value, it is common to have grand or petty theft charged along with it. Grand theft, in California, normally applies when property worth over $950 is stolen, while petty theft applies to amounts of $950 and less.
   
   
2. Elder Abuse (PC 368): When the identity of a senior citizen (65 years old or older) or another dependent adult (often physically or mentally disabled) is stolen, or when stolen IDs are used to steal their property, it is not only identity theft and grand/petty theft but also elder abuse. This extra charge is added because elders, being particularly vulnerable, are a specially protected class. Elder abuse is punishable by up to 3 years in jail and a $1,000 fine when charged as a misdemeanor and up to 4 years in prison and a maximum fine of $6,000 when charged as a felony.
   
   
3. Conspiracy: When identity theft is committed by working in concert with one or more other people, it is punishable as conspiracy to commit identity theft. As a misdemeanor, conspiracy is punishable by 12 months in jail and a $1,000 fine; as a felony, it is punishable by up to 3 years in state prison.
   
   
4. Unauthorized Computer Access (PC 502c): If identity theft or a related crime was committed via accessing a computer or network without proper authorization, PC 502c can also be charged. This is very common when an identity thief hacked into a computer network to gain access to personal data stored there. Penal Code section 502c can be charged as either a felony or misdemeanor.
   
   
5. Mail Theft (PC 530.5e): In the very identity theft statute itself (PC 530.5) is a subsection dealing with mail theft, which is, however, a distinct offense. The close association between these two crimes arises from the fact that personal information is often obtained by stealing the victim's mail out of their mailbox, at the post office, or even from the person of the mail delivery worker. Mail theft can also be committed by arranging to divert someone else's mail to your own mailbox or by otherwise receiving or possessing stolen mail of any kind. Mail theft is a misdemeanor offense, punishable by up to 12 months in county jail.
   
   
6. Attempted Crimes (PC 664): Under Penal Code section 664, even if you failed to commit identity theft but it can be shown that you attempted to do so, you can be given a sentence half as severe as what would be handed out had you succeeded at the crime. Under federal law, however, the punishment for committing identity theft and simply trying to commit it are the same. And California's attempted crimes statute also applies to the other related offenses that are often charged along with identity theft. Thus, even attempting identity theft is harshly punished.

Contact Our Los Angeles Criminal Defense Lawyer Today For Help

At the Criminal Law Office of Leah Legal, we have fought and successfully resolved a multitude of identity theft defense cases for clients all across L.A. and Southern California, and we have the legal expertise and the undying commitment to our clients it takes to win your case as well.

For a free legal consultation, do not hesitate to contact our criminal defense law firm by calling 818-484-1100 anytime 24/7/365.