Identity theft, as defined by California Penal Code 530.5, is the crime of taking another person’s personal identifying information to use in a fraudulent or unlawful way. Here is a quick look at the crime of identity theft under California law:
Types of Identity Theft
Penal Code 530.5 addresses four types of identity theft:
- Obtaining someone else’s personal identifying information and using it for any unlawful purpose without the person’s consent. “Unlawful purpose” can mean using the information to obtain money, credit, goods or services, property, medical information, and more.
- Acquiring and/or retaining possession of someone else’s personal identifying information with the intent to commit fraud.
- Transferring, selling, or providing someone else’s personal identifying information (without that person’s consent) with the intent to commit fraud.
- Transferring, selling, or providing someone else’s personal identifying information (without that person’s consent) with the actual knowledge that the information will be used to commit fraud.
There are several legal defenses against identity theft charges, including:
- Lack of unlawful purpose/fraudulent intent: Penal Code 530.5 requires that you willfully obtained the information for an unlawful purpose. Possessing someone else’s personal identifying information is not a crime in and of itself. Identity theft charges only apply if you used the information in an unlawful manner or had fraudulent intent to use the information. If you did not have intentions to use the information unlawfully, you should not be convicted of identity theft.
- Computer service or software providers: As an interactive computer service or access software provider, you cannot be guilty of identity theft unless you acquire, transfer, sell, convey, or retain possession of someone else’s personal identifying information with fraudulent intent.
- False accusations or mistaken identity: As with any crime, a number of people are wrongfully accused every year. Someone may have accused you of identity theft because you were the only person believed to have access to the information, or it could be a simple understanding.
Keep in mind that this is not a comprehensive list of legal defenses against identity theft charges. If you are accused of identity theft, your best bet is to contact an experienced criminal defense attorney who can identify the best strategy for your unique situation.
Penalties, Punishment, and Sentencing
Identity theft is a “wobbler” under California law, meaning it can be charged as a misdemeanor or a felony depending on the circumstances of the case. Misdemeanor identity theft is punishable by up to one year in county jail and up to $1,000 in fines. Felony identity theft is punishable by 16 months, two years, or three years in county jail and up to $10,000 in fines.
Keep in mind that each instance of identity theft is charged as a separate violation, so if you use someone’s personal identifying information more than once, each instance can be charged separately. Even if the offense is committed against the same victim, these penalties will apply to each separate instance of identity theft. In addition, many cases of identity theft involve other types of fraud (e.g. credit card fraud, welfare fraud, internet fraud, forgery, etc.), which are closely related to identity theft but are prosecuted as separate offenses.