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Law School Help: California Criminal – Identity Theft

In today’s post, I’m going to go over the California crime of Identity Theft. In this series of posts that I’ve, apparently, labeled “Law School Help,” I’m going to try and go over terms (e.g. common criminal offenses) that ordinary people might have heard and provide a basic description of the legal authority (e.g. the particular statute section), the elements involved, and any sentence that the offense in question might carry.

In prior posts, I’ve gone over questions like “What is Consideration?” and “What is a Common Carrier?” If you’re a law school student and you’re reading this, hopefully this series of posts provides you more real-world or practical knowledge compared to the more abstract or theoretical concepts you’re learning about in the classroom.

Anyway, the topic today is the criminal offense of Identity Theft. Identity Theft is, unfortunately, extremely common. Some of you reading this have probably been the victims of it yourself. In California, Identity Theft is a crime and it’s covered under Section 530.5 of the California Penal Code. Section 530.5 goes over several different flavors of identity theft which I’ll go over in a moment, but the underlying offense of Identity Theft consists of:

  • Willfully obtaining Personal Identifying information of another person
  • Using that Personal Identifying information for any unlawful purpose. “Unlawful purpose” includes, but is not limited to, obtaining or attempting to obtain credit, goods, service, real property, or medical information
  • This use of the Personal Identifying information is done without the consent of this other person.

If you want to look it up, this is all in Section 530.5(a) of the California Penal Code.

Sentence for Criminal Identity Theft:
Many criminal defendants want to know what the sentence is for the particular offense they are charged with. The sentence that is ultimately handed down will depend on many factors (e.g. the particular judge, the facts of the case, the defendant’s criminal history, etc), but Section 530.5 does provide some guidance. Section 530.5(a), again, addresses the most basic form of Identity Theft and says the following:

“Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.”

According to Section 530.5(a), the most basic form of Identity Theft can be charged either as a misdemeanor — because the statute says the county jail imprisonment is “not to exceed one year” — or as a felony because of that part at the end where 530.5 references “subdivision (h) of Section 1170″ of the Penal Code. If you want to Google it, the common term for this in California criminal law is “wobbler”. Section 1170(h) is too complicated to fully explore in this post, but on a high-level, 1170(h) describes common ways in which sentences for felonies are handled. For example, Section 1170(h)(1) states:

“Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”

Section 1170(h)(3) describes certain situations (e.g. prior or concurrent convictions for serious or violent felonies, etc) in which defendants with felony convictions must serve their felony sentence in state prison instead of county jail. Section 1170(h) has a lot to do with the Realignment process that California did in 2011 under then-Governor Jerry Brown which resulted in a lot of defendants serving their jail sentences at the county-level as opposed to state prison where they previously would have gone. I am not an expert on Realignment by any stretch of the imagination.  I only mention it here for context.

Flavors of Identity Theft
As I mentioned above, Section 530.5(a) of the California Penal Code goes over the most basic or vanilla version of the crime of Identity Theft. The other subparts of Section 530.5 go over various permutations, such as:

  • Identity Theft done with the intent to commit fraud, (Section 530.5(c)(1))
  • Identity Theft done with the intent to commit fraud **and** the defendant has a prior conviction under any part of Section 530.5, (Section 530.5(c)(2))
  • Identity Theft done with the intent to commit fraud where there are 10 or more victims, (Section 530.5(c)(3))
  • Trafficking in Personal Information with the intent to commit fraud ((Section 530.5(d)(1))
  • Trafficking in Personal Information with actual knowledge that Identity Theft will occurr ((Section 530.5(d)(2)). Note that this particular flavor/variant of Identity Theft is a felony. 
  • Selling, transferring, or conveying Personal Identifying information using the US Mail or when done with the actual knowledge that Identity Theft will occur. ((Section 530.5(e))

Each of these various permutations can carry a different sentence. If you have an Identity Theft situation, you need to absolutely look up the specific wording of Section 530.5 instead of relying on my paraphrasing of what the statute actually says.

As always, good luck. I hope this helps.

 

 

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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