Identity theft occurs when you take information that identifies someone else and uses it to identify yourself and sometimes commit fraud. Obtaining another person's information unlawfully and using it as your own is severely punished in California. If you are accused of fraudulently using someone else’s identity as yours, the prosecutor can charge you with misdemeanor or felony charges. However, some circumstances make the offense more serious, causing it to be tried under federal law.
The penalties for this offense are harsh upon conviction. If you receive identity theft accusations, avoiding a conviction or obtaining a more favorable outcome is your primary objective. At The Los Angeles Criminal Defense Attorney, we understand the legal repercussions of this offense, and we will work together to fight identity theft charges.
Understanding Identity Theft
The statute that criminalizes another person's information or details and uses them as your own fraudulently is PEN 530.5 in California. The best way to understand or define what the offense entails is by showing the elements of the crime the prosecutor must prove. Being accused of identity theft does not automatically mean you are guilty or receive a conviction. Your lawyer will work towards discrediting the prosecutor's case by challenging the following elements that the state must prove. These include:
- That you willfully took information belonging to another person, which identifies them without their permission for unlawful reasons
- You obtained information that identifies another individual without their consent to commit a crime
- You sold, gave, or transferred personal identifying information of another person without their knowledge or consent for the other person to commit an offense
- Offering to or sharing information for sale belonging to someone else knowing it will be used in fraudulent activities
If the prosecutor can prove that you committed any of the above offenses under the statute, you will be found guilty of violating PEN 530.5. In understanding this law, you must understand the various aspects used in its definition that include:
Personal Identifying Information or Details
Not all information about a person falls under this statute. Private and confidential information considered under this law include:
- Their names, date of birth, address, and telephone numbers
- Their tax ID and social security number
- Details of their driver's license or passport
- Their identity numbers either as employees or students in a learning institution
- Their bank account details or credit card information
- Information obtained from birth or death certificates
These details are critical in identifying who a person is, and when used fraudulently without their knowledge, they suffer significant consequences.
Willfully Obtaining and Unlawful Intent
Under PEN 530.5, you:
- Purposely obtain information belonging to another person
- With an unlawful intent
If you face allegations or charges for violating PEN 530.5, it means that you intentionally committed the offense. When an intent is unlawful, it means you tried to obtain products or services, credit or property using the stolen information. For a prosecutor to have you convicted of the offense, they only need to show that you stole the data, even without proving your intent to defraud.
The Element of Fraud
Fraud under this statute means that you:
- Deliberately gained unfairly through unlawful means or
- You intentionally caused another person to suffer losses with your actions
Under this law, it is critical to understand that to be found guilty; it's not necessary:
- For anyone to have been defrauded or
- For anyone to have incurred losses
For example, you are at work, and you walk into your colleague's office. You find they are not there, but their wallet is on the desk. You knowingly or intentionally go through their purse and steal their credit cards without their consent and plan to buy yourself a sofa you like. If you are caught with the credit card, even when you never bought the couch, you can be convicted for violating PEN 530.5.
The reason for this is the deliberate action intended to cause financial losses to your colleague and unfairly benefit you. In this case, the prosecutor only needs to prove you stole the card or information that did not belong to you. You intended to benefit from the illegally acquired identity or information.
Identity Theft as a Federal Crime
The severity of the offense can cause it to be prosecuted under federal law. However, this does not mean that you escape prosecution under the California law if you committed the offense in California. If you commit a crime in identity theft considered a federal one, you can simultaneously face two prosecutions. The federal law prosecution is independent of prosecution under the California law. If your offense is charged as a federal one, a conviction carries more severe penalties.
The offenses in identity theft that are considered federal ones are:
- Knowingly displaying another person's ID and pretending to be yours
- Knowingly transferring or obtaining identification documents stolen from another person
- Deliberately and consciously having, transporting, giving, or offering to deliver equipment for the production of false identity documents
If your offense involves any of the above, you face both federal and California identity theft charges. If convicted under federal law, the penalties include a prison sentence of fifteen years. Additionally, you will be charged $ 250,000 in fine as an individual. If the offense was committed by an organized group or organization, the fine amount increases, but not exceeding $500,000.
The sentence under federal law can also be enhanced to twenty years. This happens depending on the circumstances of the crime. Some of the situations that increase the prison time you can get include:
- You had or offered the stolen identity to facilitate a drug trafficking offense
- You provided or used the stolen identity to commit a violent felony
- You have a past conviction on the same crime of stealing an identity
Identity theft can also be committed to aiding more severe crimes. For instance, if you stole or facilitated stealing another person's identity to commit domestic or international terrorism, you earn steeper penalties. A guilty verdict, in this case, increases your state imprisonment sentence to 30 years.
Identity Theft by Hacking
You can also face identity theft charges if you hacked to obtain the information. Hacking is a prevalent fraud involving gaining access without authorization into the computer network, computer device, or data with criminal intent. You can be accused of unlawful accessing data to alter it or obtain it. This offense can be committed by illegally gaining login details belonging to another person and accessing the system without knowing.
For instance, you unlawfully obtain your finance manager's login details that he uses to authorize payments. You gain access to the system and using his information as yours, you either manipulate the system to increase income to you or a friend or transfer funds to yourself or another person. If you do this, you will become charged with two offenses under California law.
Besides facing identity theft charges for fraudulently obtaining and using information belonging to another to commit fraud, you also face charges for PEN 502 violations. Under this statute, it is unlawful to intentionally and without permission access someone's computer or a computer system to alter, destroy, or remove information for:
- Carrying out or planning to extort, deceive or defraud
- Controlling, obtaining money, property, or data illegally
If you are accused of identity theft by hacking a computer or a computer system, chances are the prosecutor will charge you with both crimes. This means the penalties you would receive are steeper because of the two offenses. However, you can avoid the harsh penalties when represented by an experienced criminal attorney that sufficiently challenges the prosecutor's evidence.
Penalties for Violating PEN 530.5 – Identity Theft
As earlier stated, violating PEN 530.5 can be prosecuted on misdemeanor or felony charges. The prosecutor decides how to charge you for the offense after considering your criminal background and the violation circumstances.
A misdemeanor conviction is typically punished less severely compared to a felony conviction. If convicted on misdemeanor charges, the penalties include:
- Three to five years of misdemeanor probation
- County jail term for not more than a year
- Paying a cash fine, not over $1,000
- Or earning both a jail sentence and a fine as punishment.
A felony conviction is arrived at when the prosecutor charges you with a felony identity theft. If the jury finds you guilty on these charges, the expected punishment includes:
- Three to five years of formal probation
- Three years or less of county jail imprisonment
- Payment of a fine not exceeding $10,000
Defenses to an Identity Theft Charge
From the above penalties for identity theft, the state takes the offense seriously and punishes it severely. With a criminal lawyer, however, strategic arguments can help create doubt in the prosecutor's case. The objective of your lawyer is to earn you the best outcome possible based on the available evidence. Your attorney will look into the offense's circumstances to establish how it happened and how you were arrested. How the police officers conducted their investigation also matters and can go a long way in exonerating you from the allegations.
During the investigation, your attorney can discover inconsistencies in the investigation or witness statements. These are crucial in your defense because they create a reasonable doubt that can have the case dismissed.
Your attorney also interviews the prosecutor's witnesses and the arresting officers. This is not only done to establish inconsistencies but to determine their characters. Additionally, character witnesses that will testify to your favor will be identified and trained on answering the questions. If you also testify on your behalf, your attorney will go through your testimony with you and prepare you for the prosecutor's questions.
Negotiating a plea bargain is also part of your lawyer's job. After evaluating the case against you and the evidence, they will advise you on the possible outcome based on their findings. Because the objective is to earn you the best result, your lawyer can opt to seek a plea deal on your behalf after discussing it with you. The prosecutor, if they find they do not have sufficient evidence to convict you, they can also offer you a plea deal through your lawyer.
A plea bargain means that you receive charges on a lesser offense that earns you lesser penalties. If a prosecutor proposes a plea bargain, your attorney must present their offer and discuss it with you.
However, if the charges proceed as charged, your attorney will defend you by presenting the following arguments, among others:
Your Intentions were not Unlawful
A critical element that must be proven is criminal intent. Based on PEN 530.5, a prosecutor must show that you took another person's private information without their permission to do an unlawful thing. If you took the information but had no criminal intentions, you are innocent of identity theft. Proving intent is challenging, and your lawyer can challenge the prosecutor to prove your criminal intentions. If this is not done beyond a reasonable doubt, the charges against you could be dismissed.
For instance, as you were walking on the streets, you see a wallet that must have fallen out of a person's pocket. You take it and plan to submit it to the nearest police station, so the owner is found. However, before you do so, you are pulled over for a traffic violation requiring the police to inspect your car. During the inspection, the wallet is noticed, and because it has credit cards bearing a different name from yours, the law assumes the wallet is stolen, and you intended to use the credit cards to obtain products.
In this case, the prosecutor must first prove that you stole the wallet containing the information and that you planned to use it as yours against the law. If the prosecutor is unable to confirm your alleged criminal intent, you are innocent of the crime.
Your Actions were not Willful
Another critical element for this offense is proving willfulness. When you obtain another person's information willfully or purposely and knowingly, you are guilty of identity theft. However, you may have the person's information but did not obtain it deliberately or intentionally.
You are charged with this offense in the earlier example because you were found with another person's wallet. But, you picked the wallet on the street, so you never gained the person's information willfully or intentionally. In another case, a friend allows you to use their computer to send an email. On logging into the machine, a document they were working on containing their private information pops up. Your friend can accuse you of opening it to steal their crucial information and commit fraud.
In both these cases, the information came to you accidentally, and you never intentionally looked for it. If this is the case, your lawyer can use this argument, providing evidence where possible and found guilty of the offense.
Your Intentions were not to Defraud
When you had another person's private information and planned to commit fraud using it, you are guilty of identity theft. However, the prosecutor doesn't have to prove the fraud element to have you convicted on these charges. All a prosecutor has to prove is you fraudulently obtained personal information to deceive.
The intent to defraud elements is difficult to determine in court. But, because of this, it can be used in your defense when you prove that you didn't have criminal intentions. For instance, you took your colleague's wallet that was left carelessly as a practical joke. By the time your colleague realizes their wallet is missing, you forgot you had it and went home. Unfortunately, your colleague becomes angry, believing their wallet with personal information was stolen. When you find the wallet among your possessions, you remember the practical joke and return it to them.
Your colleague is furious and does not understand the joke but instead accuses you of stealing their information. If this happened, your lawyer can present this argument that could have the charges dismissed.
False accusations are common in criminal cases. A person on a revenge mission against you can accuse you of the offense to have you in trouble. In an earlier example, we discussed obtaining your finance manager's logins and altering data or authorizing a payment illegally. Suppose it was another person that obtained the logins, and after modifying the data, he frames you for it.
For instance, you work closely with your finance manager as their assistant. Because of the working relationship, it is easily assumed that you can easily find their information. Unfortunately, a colleague finds a way to steal the information and plant evidence against you. If your computer was used to access the finance manager's data, you could be easily blamed for the offense when it was never you.
With evidence, your attorney can argue that you were not at your desk when the violation occurred. Further, character witnesses testifying on your impeccable character can be presented, among other forms of evidence.
PEN 530.5 Conviction and your Immigration Status
Criminal convictions can be detrimental to your immigration status if the offense is of moral turpitude. If you steal another person's identity and commit fraud, a conviction can result in your inadmissibility or deportation. This is because the offense, according to immigration law, meets the threshold of moral turpitude crimes. But, with an experienced criminal attorney, you can avoid these harsh consequences when reasonable arguments are presented in your favor.
Expunging your Criminal Record
If you hold a record on identity theft, the legal penalties are not the only repercussions you face. A conviction in California is a matter of public record. This means any person can access your history and know that you have been convicted of a crime.
Individuals with a criminal background face lots of challenges in their daily lives. For instance, even when you can afford to rent a property, a prospective landlord can deny you their property because of your criminal background. Potential employers also look into your criminal background before offering you a job. Equally, if you seek admission to a college, your entry can be denied due to your criminal background.
Due to these and many other reasons, having your criminal record deleted from public scrutiny allows you an equal opportunity as others without a past conviction. Your records' expungement only happens after successfully completing your sentence and other terms of your punishment. However, you do not receive expungement automatically. The discretion of expunging your record lies squarely on the judge's decision.
When you complete serving your sentence, your lawyer files a petition for expunging your record with the court. A copy of this petition is given to the prosecutor to respond. If the prosecutor does not oppose the expungement, the judge decides to grant it or not. However, if the prosecutor objects to your having the records deleted, a date to hear their case is given. Both parties present their arguments before the judge on the given date.
After the hearing, the judge decides to grant or deny you the expungement, citing reasons. This does not mean you cannot file another petition in the future. If you satisfy the requirements of the court, the judge will grant you expungement.
Gun Rights and Identity Theft Conviction
A felony conviction in California on identity theft charges can deny you the privilege of owning or using a gun. If you receive felony charges for this offense and are convicted, you must surrender your weapon to the authorities or sell it. However, if the violation is prosecuted as a misdemeanor, a conviction will not affect your rights to own or use a gun. Aggressive defense against a felony conviction can help you avoid losing your gun right privileges.
Find a Criminal Lawyer Near Me
A conviction on any criminal offense has severe repercussions for a defendant, let alone legal penalties. If you are faced with allegations of stealing another person's identity, you must never take the accusations lightly. Instead, seek an attorney’s help. Prevailing over criminal charges is always the primary goal of every defendant, and so should be yours. At The Los Angeles Criminal Defense Attorney, we have extensive experience and knowledge in criminal law to offer you the rigorous defense you deserve. Call our offices at 310-564-2605 to discuss your defense.