In California, there are two different ways to sue someone of identity theft, the victim could sue the defendant under the rule of torts, in civil cases and seek for monetary damages, or the prosecution could charge an individual of identity theft under California Penal Code. Basically, the identity theft is considered a crime when a person uses another person's personal identifying information for any unlawful purpose, including "obtaining or attempting to obtain credit, goods, services, real property, or medical information, without that person's consent. "1
Usually, the most common conducts that could lead a person to a conviction are:
- Using another personal information, as a SSN, health insurance information, address for unlawful purpose, including to collect welfare or other insurance benefits.
- Using someone's drive license for any kind of reason.
- Selling or transferring another's personal identity information, as driver's license, passport, SSN.
- Using another's credit information to open a bank account.
- Using another person's name to apply for mortgage or any other type of loan.
- Signing else's name on a check.
- Using someone's credit card for any type of purpose, including online purchasing.
- Using another person's name or identification to escape of criminal liability.
- Using another person's e-mail account.
1 Witkin California Criminal Law, Fourth Edition. Crimes Against Property
Legal Definition of Identity theft
As explained briefly above, identity theft is defined on the section 530.5 under the California Penal Code, it established and prohibits different types of conducts that could lead someone to be convicted of this crime. Generally, there are 4 types of identity theft conduct: obtain, acquiring or retain, selling or transfer or provide someone's personal information for any unlawful purpose without the victim's consent. An unlawful "purpose is not limited to a criminal conduct, but also includes conduct amounting to intentional civil tort; thus, improperly obtaining and using victim's password to enter, alter, and post prurient messages of victim's social network website was libel and violated of identity theft."
Furthermore, the unlawful purpose usually includes: obtaining money, credit, goods, services, property or medical information for any kind of reason. The charges could happen even if the victim did not suffer any type of monetary damages, just using the victim's personal information and obtaining improperly the victim's password could be enough for the prosecution to charge someone.
For someone being convicted of identity theft the prosecution must prove into Court the following elements of crime:
1. The defendant willfully obtained the personal information of another to use for an unlawful purpose, without the victim's consent.
Therefore, the prosecution must prove that the defendant acted with intent to defraud someone's personal information and used the victim information for inappropriate conduct.
2 In re Rolando S. (2011) 197 C.A.4th 936, 942, 946, 129 C.R.3d 49.
Let's explain in details those elements of identity theft for better comprehension. These conditions are essential for someone being guilty, if the prosecution does not prove these elements, a person should not be convicted. San Diego Criminal Attorney will work to prove the innocence of its clients.
1. Acted willfully
The first element that prosecution needs to prove to initiate the identity theft charge is the willful conduct of the defendant. A person is acting in a willful way, when the intention is to do something on purpose, even if there is no intent to hurt someone, gain advantage or break the law. 3
The evidence necessary to proof, is that the person, the defendant, willfully committed a conduct that by its nature will probably and directly result to defraud another person. The prosecution, in this type of cases, does not need to prove a specific intent to inflict a harm or cause monetary damage to the victim. However, it must show that the defendant intentionally engaged in an act that would produce detrimental consequences.
Example: Marie and Nicole are friends for a long time. One day Marie went to Nicole's house and had to use her Facebook account on Nicole's computer. After using Nicole's computer, Marie forgot to logged out on her Facebook account and for that reason Nicole could have access to Marie's facebook. On the next day, Nicole used Marie's account to solicit sex with other guys, also sent to all her male friend explicit sexual messages and she added on Marie's facebook account a lot of pedophiles. After discovering all of Nicole's conduct, Marie discovered that Nicole was always jealous of Marie and wanted to ruins her image with the society.
3 CALCRIM 915 – Simple Assault (Pen. Code, § 240). (“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
In this case, Nicole could be convicted of identity theft under California Penal Code, even though Nicole did not put efforts to obtain Marie's Facebook information, the Courts could still find that nicole had willying conduct in the moment that Nicole had obtained the friend's information and used for unlawful purpose.
Personal identity information.
Courts already have defined what is considered a "personal identity information", usually it is all type of information that could lead the defendant to uses the victim's personal information, such as: "name, address, telephone number, health insurance number, taxpayer identification number, school identification number, state or federal driver's license, or identification number, social security number, professional or occupation number, mother's maiden name, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password, alien registration number, government passport number, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image, or other unique physical representation, unique electronic data including information identification number assigned to the person, address or routing code, telecommunication identifying information or access device, information contained in a birth or death certificate, or credit card number of an individual person, or an equivalent form of identification. "4
The offense of identity theft could be charged as either misdemeanor or a felony, depending on the facts of each case. That is called wobbler in California, the prosecution has a option to charge the defendant with both crimes depending on the facts of the case.
The misdemeanor identity theft l is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in county jail not exceeding one (1) year, or both the fine and imprisonment.
However, if someone was charged as a felony, the penalties could be aggravate depending on the facts of the case, a felony is punishable by a fine not exceeding 10 thousand dollars ($10,000) or by imprisonment in county jail not from sixteen (16) months to three (3) years, or both the fine and imprisonment.
4 § 530.55 (b)
A identity theft could be a felony crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a offense register, it is likely that the employer won't hire someone with a felony background. If you were charged with identity theft you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and it can help you to build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful our staff to help you with your legal problems.
To contest the charges of this offense, San Diego Criminal Attorney would be able to use the following legal defenses:
- Lack of unlawful purpose.
A person could not be convicted of identity theft If the defendant did not use the victim's personal identity information for any type of unlawful uses. For instance, if you obtained someone's credit card, but did not uses, you could not be convicted of this crime. Or if you acquired someone's private password and did not use for illegal purpose, you cannot be convicted of identity theft.
- No fraudulent intent.
One defense that San Diego Criminal Attorney could build for you, is the lack of fraudulent intent, if the defendant did not intent to defraud the victim, he/she should not be guilty of identity theft. If that was your case, our team can build a strong defense to diminish the case or even dismiss the case.
For instance, if you by mistakenly got your friends credit card and bought the new iphone, but you thought the card was yours, you should not be convicted of identity theft, since you did not have fraudulent intention.
- False accusations.
Under the rules of Californa Law, it is too easy for a victim falsely accuse another of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact our attorneys promptly.
- Interactive computer service or software provider.
The California Penal Code under the section 530.5 (f) establish that "an interactive computer service or access software provider, as defined in subsection (f) or Section 230 of Title 47 of the United States Code, shall not be liable under this section unless the service or provider acquires, transfers, sells, conveys, or retains possession of personal information with the intent to defraud." In other words, someone could not be guilty of identity theft if she/he just has computer service or has access of the software provider and does not have intention to defraud another person.