WHAT IS IDENTITY THEFT?
In California, if you are the victim of identity theft, there are two routes you can take. You can utilize the civil legal system, and sue the Defendant for identify theft under what is known as “tort” law, in an effort to recover money. The second is through the criminal process, the Prosecutor can bring charges against the Defendant pursuant to the California Penal Code. The crime of identity theft occurs when an individual uses another individual’s “personal identifying information” for the purpose of obtaining or trying to obtain credit services, goods, property or medical information without the individuals consent.
- There are as many ways to commit identity theft, as you have ideas, but certain conduct is much more common place. Typical acts that constitute identity theft under California law include:
- Using someone else’s social security number for the purpose of collecting unemployment benefits or other forms of social welfare.
- Using someone’s driver’s license for any purpose, including using it to get into a club when you are underage, unless the person gave their consent for you to do so.
- Selling another person’s personal information including their Social security number
- Utilizing another person’s information for the purpose of opening a bank account or to obtain a new credit line.
- Using someone else’s information to obtain a mortgage, or a loan of any kind.
- Signing a check using someone else’s name.
- Using another individual’s credit card information for any purpose at all, including online purchases from EBay or Amazon/
- Using another person’s name to escape, or avoid, criminal consequences for you actions.
- Using another individuals email account for any purpose whatsoever.
LEGAL DEFINITION OF IDENTITY THEFT
California Penal Code §530.5 sets forth the definition of identity theft. In general there are 4 broad categories of identity theft. Obtaining, attempting to obtain, selling, or transferring someone’s personal information for an illegal goal, without that person’s prior consent. For purposes of the crime, an unlawful purpose does not need to be criminal conduct; it can also be for a purpose that would expose someone to liability for an intentional tort. For example, stealing someone’s password to Facebook for the purpose of going n and making statements highly offensive to most people would subject the individual to a civil tort of libel, and therefore the Defendant could be convicted of identity theft.
In general the unlawful purpose is to get money, credit, services, good, real property, or medical services.
To be convicted of identity theft the Prosecution must prove the elements of identity theft to the jury beyond a reasonable doubt:
- The Defendant acted willfully in obtaining the victim’s personal information, the Defendant intended to use that information for an unlawful purpose, and the victim did not consent to the Defendant’s use of their personal information for unlawful purposes.
Thus, to maintain a conviction for identity theft, the Prosecution must prove that the Defendant acted with the purpose of defrauding the victim when they obtained the victims identifying information, the Defendant utilized that information for an unlawful purpose, which as mentioned above does not have to be a criminal purpose, it can be for a purpose that would expose the victim to civil liability, and further the victim never gave the Defendant permission to engage in that conduct.
Since the Prosecution has to prove every element beyond a reasonable doubt it is necessary to understand each and every element of the crime. The attorneys at Orange County Criminal Attorney have extensive experience dealing with clients who are charged with all manners of criminal charges, including identity theft. Having an OCCA attorney representing you throughout the process will exponentially improve you r chances of obtaining a favorable outcome in your criminal case. A detailed analysis of the elements of identity theft are set forth below.
WHAT DOES IT MEAN TO ACT WILLFULLY FOR PURPOSES OF IDENTITY THEFT?
The first element the Prosecutor will have to prove to the jury beyond a reasonable doubt it that the Defendant willfully obtained the victims identifying information. The Defendant is deemed to have acted willfully when the act that resulted in obtaining the victims personal information was done on purpose. It does not matter if the Defendant had no intention of using that information to harm the victim. For this element is sufficient that the Defendant intended to do the act which resulted in them acquiring the victims information.
The Prosecution need only prove that the Defendants conduct was of a type that it would naturally and probably result in the Defendant acquiring the victim’s personal information. There is no need to show a specific intent to cause the victim harm, only that the Defendant intentionally behaved in a way that would be likely to result in negative consequences.
Dave was walking down the street in downtowns San Diego, minding his own business after a long day at work. He felt he was underpaid and underappreciated, and felt like his job situation would never improve; he knew if he could just afford a new orthopedic mattress, his life would improve considerably. While walking down the street Dave saw a wallet that must have fallen out of another person’s pocket. Dave picked up the wallet, opened it, and took the driver’s license, social security card, and credit card out of the wallet, then threw the wallet in the trash. Dave will be found to have satisfied this element of identity theft because he intentionally opened the wallet, and he intentionally took those items out of the wallet; it doesn’t matter if he intended to use it for this element of identity theft.
WHAT IS PERSONAL IDENTIFYING INFORMATION
Since identity theft is premised on obtaining someone’s personal information it is important to understand what constitutes identifying information. The courts have addressed this question and concluded that it is the type of information that could lead the Defendant to be capable of convincing any other entity that they are the victim for any purpose; obtaining medical information, tax information, welfare, etc.
WHAT ARE THE PENALTIES I WILL FACE IF I AM CONVICTED OF IDENTITY THEFT?
If you are charged with identity theft in Californian the Prosecutor will have the option of bringing the charge against you as either a felony, or as a misdemeanor. The decision on how to bring the charge against you will be determined by the severity of the damage is to the victim.
- If you are charged with misdemeanor identity theft you may face incarceration for up to one year, or you may be fined up to $1,000, or a combination of both the jail time and the fine.
- If you are charged with felony identity theft you could face a jail sentence ranging from sixteen (16) months to three (3) years, you may also be fined up to $10,000, or the punishment may be a combination of both incarceration and a fine.
WHAT ARE THE LEGAL DEFENSES MY OCCA ATTORNEY CAN RAISE IF I AM CHARGED WITH IDENTITY THEFT?
As mentioned above the crime of identity theft can be brought by the prosecution as either a felony or as a misdemeanor depending on the___14 facts surrounding the crime. Regardless, if you are convicted the conviction will appear on your criminal record, which is accessible by anyone who is conducting a background check on you. A typical example of someone who may conduct a background search on you is an employer who is considering hiring you for a position in their company. Employers generally do not want to hire someone with a misdemeanor conviction on their record. Employers are particularly cautious if the potential employee has a felony conviction on their record. Finally, it will be nearly impossible to obtain employment with many companies if the conviction is for a crime that involves dishonest and theft. If you are charged with identity theft in California, contact an attorney at Orange County Criminal Attorney immediately. Competent representation in criminal proceedings is critical and could be the difference between a conviction and an acquittal. Your OCCA attorney can, and will, raise a number of defenses in your criminal case including:
- The Defendant did not have an unlawful purpose when they obtained, or used your person information.
- An individual cannot be convicted of identity theft if they didn’t use the victim’s information for an unlawful purpose. For example a person could not be convicted of identity theft if they found a wallet on the street, opened the wallet, grabbed the driver’s license, and found the persons home address if the purpose of doing all of that was to return the wallet to the rightful owner.
- There was not fraudulent intent.
- False accusations.
In California, it is far too easy for an individual to falsely accuse another person of a crime. There are many reasons why someone might falsely accuse another person including rage, jealousy, and revenge. Accusations of identity theft typically accompany break-ups, divorce, or particularly hard financial times; sometimes in an effort to avoid collection efforts on a debt the person owes, that individual may accuse you of identity theft so that they can buy time to pay their debts. If you have been falsely accused of identity theft contact you OCCA attorney immediately. OCCA attorneys have experience representing clients who have been falsely accused, and will fight vigorously to prove your innocence before your reputation can be dragged through the mud.
- Interactive computer service or software provider.
The California penal code makes clear that a computer service or access software provider of an interactive computer service will not be guilty of this offense unless they acquire, sell, convey, or transfer a person’s personal information with the intent to defraud.