I. California Penal Code 530.5(a): Unauthorized Use of Personal Identifying Information

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Legal Definition: Identity Theft is generally known as the taking of another person’s money or credit through fraud; however, identity theft crimes are titled unauthorized use of personal identifying information because acquiring another person’s money or property is not actually an element of the charged offense. There are three important sections to discuss under PC 530.5

For a person to be convicted of a violation of PC 530.5(a) the prosecution must prove the following:

1. You willfully obtained someone else’s personal identifying information;
2. You willfully used that information for any unlawful purpose; AND
3. You used the information without the consent of the person whose identifying information you were using.

For a person to be convicted of a violation of PC 530.5(c)(1)/(c)(2)/(c)(3) the prosecution must prove the following:

1. You acquired or kept the personal identifying information of another person/ten or more other persons; AND
2. You did so with the intent to defraud another person.

For a person to be convicted of a violation of PC 530.5(d)(1) the prosecution must prove the following:

1. You sold/transferred/conveyed the personal identifying information of another person; AND
2. You did so with the intent to defraud.

II. What does this mean?

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A person intends to defraud if he or she intends to deceive another person either to cause a loss of money/goods/services, or to cause damage to a legal, financial, or property right. It is not necessary that anyone actually is defrauded or actually suffer a financial, legal, or property loss as a result of the defendant’s acts. The sections above break down essentially the three ways in which you can be convicted for this charge: 1. Obtaining and using someone else’s information; 2. Obtaining someone else’s information; 3. Obtaining and selling someone’s information.

The first two are self-explanatory, but the third requires you essentially sell someone’s personal information to a third party. This could be someone who works at a bank, selling the account information to their friend, who intends to steal the account holder’s money.

III. Penalties

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Identity Theft is a wobbler crime. That means that it can be charged as a Felony or Misdemeanor offense, based on many factors including the amount of loss, the amount of information taken, and your background. If you are convicted of this charge as a Misdemeanor, you could be sentenced to County Jail for up to one year. If you are convicted of these charges as a Felony, you could be sentenced to upwards of 16 months, two or three years in State Prison. You would be required to serve 50% of that sentence.

Also, a good amount of people who find themselves in this situation also face issues with Professional Licenses and Immigration issues. A conviction under this section is considered a Crime of Moral Turpitude, so non-residents, nurses, or even doctors, could face license suspensions, and Immigrants would very likely face Deportation proceedings.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Mistake of Fact
4. Violation of your Rights
5. Duress

As Dwight Schrute says in The Office to the character Jim Halpert, “Identity Theft is not a joke Jim, millions of people suffer every year”. That quote, unfortunately, is true. However, it is a charge that is defensible. For example, say a person tells you, who works as a bank teller, to sell them information on their richest clients. If you told them, no, and they then threatened to murder you, holding a gun to your head; your action thereafter would be considered defensible using Duress. You did not intend to defraud any person, you were being forced to do so.

Other issues arise in terms of your intent to defraud, and whether it can be shown you stole someone’s item to defraud them, or if you innocently just found their information and were holding it, planning on returning it, not defrauding them.

V. Call Today

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