Vista Criminal Attorney provides clients with excellent representation if they have been charged with an identity theft crime in the Vista, CA area. Often, people receive more than one charge, making it difficult to navigate around such legal intricacies. Fortunately, for those who have attorneys experienced on a broad spectrum of criminal charges are able to have a better chance to reduce their charges and penalties. Needless to say, the Vista Criminal Law Firm is quite experienced in matters Identity Theft and have helped countless people who have been accused of this crime.
What is Identity Theft as Per California Law?
As per the penal code 530.5, using someone else’s identity in a fraudulent or unlawful way amounts to the theft of identity. Activities such as the unauthorized purchase of goods, services or obtaining credit under another person’s identity are categorized as identity theft. The main forms of identity theft are divided into four ways. The first, procuring someone’s personal information for unlawful use, and without their consent. The second involves procuring other people’s personal information to commit fraud and without their permission. Thirdly, putting other people’s information for sale or giving out such details with the goal of committing fraud in reference to identity theft. Lastly, selling or giving out information without the owner’s permission, and knowing it will get used in committing a fraud.
One may, therefore, ask if being in possession of other people’s data amounts to identity theft. Well, it only does, if it is proved that the data was used in a fraudulent and unlawful manner, without permission. For further clarity, another person’s information includes but not limited to their name, social security number, Tax identification number, address, driver’s license, birth date, bank or credit card information, school/workplace identification number as well as passport information. Also, California law takes into account the unlawful use of biometric data such as iris and retina images, fingerprints plus voice. With regards to unlawfulness, activities include using the information to get some money, service, medical information, property, or goods.
Fraud is further defined as actions leading to unfair benefit for the one using someone else’s information fraudulently. It also covers the cause of harm or loss to the information’s owner. According to California’s laws on criminal fraud, it is a thoughtful act intended to get some unlawful/unfair gain, while the affected suffers a loss. Two major instances of fraud comprise of a case where the offender uses someone’s name plus/or other data to make purchases or receive certain benefits. There are also some phrases that need deeper interpretation as per California law. For example, willfully is used to mean intention and not necessarily any ill-will or evil plans. Thus, with regards to identity theft, willfully obtaining someone’s information does not mean the information was sought or assenting action taken in the effort of securing the same. Instead, it means the obtainer accepts and makes a conscious decision to use it a malicious way. To illustrate that, imagine a situation where the defendant received an uninvited message, which contained someone’s email password. The defendant then uses that information to access social profiles related to that email address and posts lewd material. The court will likely rule that they willingly obtained the personal information despite not making any efforts towards getting the email password.
Different Forms of Identity Theft
A victim could suffer plenty of damages as identity theft is quite broad. Having realized this, in 1998 the legislature added the Identity Theft and Deterrence Act into federal law. As a result, the theft of identity is a federal offense as well, as per section 1028 of the United States Code Title 18. It is more advanced and if found guilty, fines are applicable, with up to 30 years in prison. In conjunction with the offenses listed earlier, the federal law lists extra actions related to identity theft. They include knowingly offering identification papers issued illegally, knowingly showing someone else’s identification document, or by free will being in possession or aiding in the movement of equipment meant to make illegal identification documents.
Under California law, identity theft examples include the following.
- Use of other people’s birth dates and names in committing a criminal act.
- Acquiring a mortgage or loan through use of other people’s name and identity information.
- Collecting insurance or welfare benefits through the use of someone’s social security number and other relevant details. It also doubles up as a violation of California’s unemployment insurance laws, and welfare laws.
- Pertaining to fraud on the internet, use of someone’s credit card to conduct purchases online contravenes the credit card fraud laws of California. Meanwhile, using someone’s email account violates California’s laws on personifying individuals falsely.
- Lastly, forging someone’s signature on checks violates California’s forgery law, Penal Code 470.
In California, identity theft could be charged either as a misdemeanor or felony. That, however, depends on the respondent’s criminal past and specific facts related to the case. If charged as a misdemeanor, the respondent could serve a jail term not exceeding 1 year in county jail, a fine of $1000 or both. On the other hand, if classified as a felony the charge comes with a 3-year jail term in California state prisons, a fine amounting to $10000 or both. As illustrated above, the federal law prosecutes identity theft with punitive terms of up to 30-year jail. Thus, the prosecution under the California law seems a bit more lenient though both agree in quantifying every single use of another person’s information as separate offenses. Mind you, it applies even when the victim is the same in all instances of identity theft.
Related Charges to Identity Theft
Quite a number of charges are closely linked to the theft of identity. Therefore, prosecutors charge such offenses complementarily to Penal Code 530.5. They include California welfare fraud, internet fraud, fraud on credit cards, Penal Code 470 (California’s forgery law), California’s employment insurance fraud, as well as Penal Code 529 (California’s false personation law). Most of these were hinted at earlier, but there are also other related offenses as expounded below.
- Theft offenses in California: such an offense could be triggered owing to the fact that identity often involves the theft of goods, services, and money in conjunction with information theft. In cases where the worth of things stolen goes past $950, the offender is in violation of Penal Code 487 (California’s law on grand theft). Under such conditions, prosecutors may adjoin that charge, which comes with a wobbler (charged either as a misdemeanor or felony as described previously). Where the price of goods or services goes below $950, the charge is classified as per Penal Code 484 (California’s law on petty theft). It counts as a misdemeanor and bears a 6-month term in county jails with a fine not exceeding $1000.
- California’s law on elder abuse: Penal Code 368 protects elders who are defined as persons 65 years of age or older. They are protected from financial, physical, and/or emotional abuse. Take for instance, a caregiver that uses an elderly person’s details to get social security cash assigned to the latter or steal their medical payments. A prosecutor would charge such an offender with theft of identity in combination with elder abuse. The penalty is a wobbler with some difference in certain specifics. The sentence could increase from the normal 3-year term in a county jail to 4 years in state prison if classified as a felony. As for a misdemeanor classification, fines would shoot from $1000 to anything within the range of $6000.
- California’s law on conspiracy: Persons found to be in cahoots with other individuals to commit theft of identity, would be in violation of California’s conspiracy law. The penalty is a wobbler with a jail term maxing out at 3 years for the felony. A misdemeanor bears a 1-year county jail term and/or a maximum fine of $1000. Take note though, when linked with identity theft, fines might go up to $25000. If found guilty of collaborating in committing the crime of identity theft, under federal law, you get the identity theft penalty. That, regardless of whether you actively participated or not.
- California’s law on attempted crimes: in cases where one gets intercepted in committing identity theft, they serve half the usual sentence. That is in accordance with Penal Code 664, which is California’s law concerning attempted crimes. However, if charged in accordance with federal law, the defendant serves the full sentence as if they committed the crime.
- Unlawful computer access: Under Penal Code 502(c), it is a crime if one knowingly accesses a computer system or network without permission. In proceedings where it is alleged that the offender got personal information through hacking or accessing someone’s profile without permission, the charge could be adjoined. Whether it is charged as a felony or misdemeanor depends on the amount and nature of damages.
- Mail theft: The Penal Code 530.5(e), deals entirely with California theft of mail. Mail theft takes place when one wrongfully obtains information via fraud or deceit, from a mailbox, a courier, or post-office. If alleged that the defendant obtained private information as a result of knowingly handling stolen mail, the charge is attached. The offense gets classified as a misdemeanor in nature and bears a 1-year county jail term.
- Telemarketing fraud: in some situations, data collected is used in tailoring a ‘marketing scheme’ that is quite hard to resist. The offender calls with some unsolicited, and catchy marketing details. Whether or not they fall for the ploy, such an action is chargeable in a court of law. The penalties include a 1-year county jail term, and/or $1000 fine. If lucky, the defendant might get informal probation, all for a misdemeanor. If a felony, formal probation could be applicable in the long term, but mainly the punishment is a maximum of 4 years in state prison, and/or $10000 fine.
Burden of Proof in Being Convicted for Identity Theft
In order to effectively prove that the defendant committed the crime of stealing someone’s identity, the prosecutor has to prove the unauthorized use of personal information. In accordance to Penal Code 530.5 PC, the prosecutor must show proof that:
- The other person’s information was willfully obtained by the defendant
- The defendant knowingly, and willingly used the other person’s information unlawfully
- The defendant used the information without the owner’s knowledge, and/or permission
To dispel uncertainties, personal information includes any kind of document or detail that can be used in identifying someone. As per Penal Code 530.55 (b), the list includes but is not limited to, a person’s name, their address, telephone numbers, birth date, taxpayer identification number, and health insurance number. Others include school/work identification number, social security number, state identification number or driver’s license, mother’s maiden name, saving account number, personal identification number (PIN), passwords, deposit account number, checking account number, savings account number, information contained in birth or death certificates, and any other comparable form of identification.
In defining a victim, they do not necessarily have to be an individual or in singular form. They could be businesses, firms, corporations, public entities as well as associations. That is as per Penal Code 530.55 (a), which allows for the listed entities to be considered as a person regarding identity theft law. Whether the defendant got some financial gain or not, and if there was actual harm is not a major concern. The entirety of the identity theft crime depends on the prosecutor’s ability to prove beyond reasonable doubt. At times, the prosecutor might allow for a plea bargain with dismissal if the alleged defendant follows the court's probationary terms. Judges approve such bargains when the attorney and prosecutor come to an understanding of all that actually happened and feel that it is an appropriate penalty. That speeds up the entire process, and a reduced sentence might be possible where certain conditions are met per their agreements. Other unpopular approaches could include getting a forced confession, and/or false accusation. All of which are geared towards the proof of the crime.
Common Legal Defenses for Identity Theft
Criminal defense attorneys present varying legal defenses on behalf of defendants in identity theft cases in which certain defenses tend to be more effective than others. Go through some of the examples listed below to get a feel of some of the possible defenses.
- Absence of Unlawful Purpose: one can be acquitted of identity theft if they had not used the information they had obtained in an unlawful manner. However, it only applies if charged under the Penal Code 530.5 (a). The subsection only forbids getting other people’s personal identification documents willingly and using that data for illegal purposes. Hence, someone that obtained another person’s information intending to use it but later one decided against that idea is not guilty under this subsection.
- Absence of fraudulent intent: if charged under any other of the other subsections of Penal Code 530.5 PC, but had no intentions of committing fraud, acquittal is possible. Possession of other people’s identification documents is not a crime by itself. An identity theft crime only applies if the information is used in an unlawful manner as per subsection (a), and in the presence of fraudulent intentions as per the other subsections.
- Mistaken identity/false accusations: innocence is without a doubt the best defense. Charges could easily be dismissed in the presence of unquestionable proof that the defendant was accused to have committed identity theft falsely, or was a victim of mistaken identity. For example, if one roommate is accused of identity theft and the accuser is the only person they live with, since there is no other immediate suspect, and they can be falsely accused since they have access to the accuser’s information. A caregiver could also be accused of fraudulently receiving social security benefits as they are the only ones in charge of taking care of an elderly couple. In such cases, the one accused might not even have the slightest idea on what is happening, as it could be an act perpetrated by some other culprit. In such situations, a bit of investigative work would help unearth the truth and consequently lead to acquittal if they have been falsely accused.
- Computer and software services provision is the defendant’s job: the law cushions the liability for software providers and computer service providers from prosecution. Based on California’s Penal Code 530.5 (f), plus the U.S Code Title 47, section 230, computer service and software providers are exempt of prosecution so long as they do not handle the information with any intents to commit fraudulent activities. However, the clause can only be used in an acquittal if the condition of not fraudulently using the obtained data is met.
- Presence of consent: such a defense mainly applies to caregivers and any other person in a position to prove that they actually got consent to use the information. Once again, a bit of investigation would help greatly in determining if indeed there was any consenting impression from the information holder.
Find a Vista Criminal Attorney Specializing in Identity Theft Cases Near Me
Now that you have an in-depth understanding of identity theft with some probable defenses, you need attorneys that are up to the task to put these defenses in action. Do not look further, Vista Criminal Attorney has the best talent in regards to successfully arguing cases into a favorable ending. Our lawyers will be at your side all through the different phases of court and maneuver the probable defenses, with your best interest in mind. We are just a phone call away, call 760-691-1551 to receive a free consultation from one of our expert attorneys.