An identity theft crime occurs when a person takes identifying information belonging to another person and uses it unlawfully or fraudulently. This offense is prosecuted as a wobbler, meaning you can face felony or misdemeanor charges. Additionally, identity theft can be prosecuted as a federal crime, depending on various circumstances. The penalties, if convicted, can be severe, and the repercussions of having a criminal record are even more. If you are facing charges of identity theft, it would be best to avoid a conviction if you can. Get a criminal attorney to fight these allegations against you and avoid wrongful conviction or get a favorable outcome. At San Diego Criminal Attorney, we will evaluate your case and represent you in court through our skilled criminal lawyers.
Definition of the Crime of Identity Theft
Under PEN 530.5, identity theft occurs under these four circumstances:
Willingly taking another person’s information that identifies them and using it for unlawful purposes without their consent
Obtaining information identifying another person without their permission intending to carry out fraud
Giving, selling, or transferring another person’s identifying information without their consent to another to commit fraud
Transferring, offering, or selling identifying information belonging to another person with the knowledge that it will be used to commit fraud
Key Elements of the Crime
You need to understand the following elements and terms:
Personal Identifying Details or Information
Concerning the law, information that is considered private and identifies a person include:
Birthdate, names, telephone number, and address
Social security number and Tax I.D.
Passport details and driver’s license information or number
Employee identity number or school identity number
Information on a credit card account or bank account information
Details found in one’s death or birth certificate
Willfully Getting and Illegal Intent
According to PEN 530.5, an individual cannot:
Willfully obtain another person’s identifying information or details
For an illegal intention
If you are accused of this offense, it means you willfully or purposely committed the crime. An unlawful intent involves unlawfully obtaining or trying to secure credit, goods and services, property, and medical details. Note that a prosecutor is not required to prove that the defendant intended to defraud.
Fraud is the deliberate deed aimed at securing an illegal or unfair gain or making another person experience loss.
Note that it is not a requirement that anyone was defrauded or incurred a loss.
For instance, you go into your neighbor’s house and find they have left their wallet on the table. You decide to take their credit card to buy a T.V. set for yourself. In such a case, you will be found guilty of identity theft. This is because you deliberately acted in a way that was purposed to make your neighbor lose financially. Even if you do not go ahead with your plan, you are still guilty of the offense.
When Identity Theft Becomes a Federal Offense
As earlier stated, identity theft can be prosecuted as a federal offense, according to 18U.S.C 1028. Federal law goes further than Identity theft law in California. This means that a person can commit an identity theft offense and get punished under both the California law and Federal law. The penalties, when found guilty under the federal statute, are more severe.
Under federal law, it is an offense to:
Display an I.D. belonging to another person knowingly
Transfer identification documents were stolen from one person to another knowingly
Own, transport, give or produce equipment used in producing false identifying documents deliberately.
A conviction for a federal crime in identity theft attracts severe penalties. When found guilty of this offense, you will face incarceration for fifteen years or less. You will also be ordered to pay a fine of $250,000, or $500,000 if it is an organization.
A federal conviction on this offense can also earn you imprisonment for twenty years if you commit the offense while:
Providing for a crime in drug trafficking
Involved in a violent crime
Have been convicted of identity theft offense before
If you committed identity theft crime to enable either international or domestic terrorism, the penalties are steeper. If you are found guilty of the offense, you will be sentenced to thirty years of federal incarceration.
Hacking in Identity Theft
A defendant can also commit the offense of identity theft through hacking. This is a popular kind of fraud that involves a person gaining unauthorized access into the computer, computer network, or data with an illegal intent.
A defendant can hack into a computer to manipulate the system or the data therein. A person can steal the login details of another person to log into a system to commit fraud without the other person’s knowledge.
The statute that discusses computer hacking is found under PEN 502. It makes it a criminal offense for a person to knowingly and without consent accesses a computer and change, destroy or delete information with the intention of:
Executing or formulating a plan to defraud, extort, or deceive
Illegally controlling, or taking money, data, or property
This means that, if you are found doing these things, you are also guilty of identity theft.
Possible Legal Defenses
You need to engage a criminal attorney to defend you against allegations of identity theft. Your lawyer will investigate the charges against you and evaluate all the evidence the prosecution has for the case. If there are inconsistencies with the prosecutor’s case, your attorney will identify them in your defense.
Your lawyer will also interview your accuser and look into their background. Maybe the accuser had a vendetta against you and wants to see you punished. If it is a case of mistaken identity or misunderstanding, your lawyer will establish that and formulate the best defense for you.
A lawyer is crucial when it comes to finding you a better deal. Based on the case, your lawyer may negotiate a plea deal that will have you charged with a lesser crime and avoid the hefty penalties of identity theft. Representing yourself is never a good idea, mainly because you do not understand the law, or you may not notice inconsistencies with the case.
Some of the defenses your lawyer will use include:
1. You had no Unlawful Intentions
One of the critical elements in this offense is criminal intentions. According to PEN 530.5, to be found guilty, you must have taken the personal information belonging to the other person for an unlawful reason. This means, if you had no unlawful purposes, you are not guilty of the offense. In this case, your lawyer must demonstrate that you had no criminal intentions.
For instance, you find a wallet belonging to another person on the street. You pick it up intending to report it for the owner to find it. Unfortunately, you get stopped for a routine roadblock check. Unfortunately, the officer notices the wallet and asks for the owner. The wallet has the owner’s credit cards, social security cards, among other information. The officer places charges for identity theft as a result.
In such a case, the prosecution must prove that you intended to use the information belonging to another person for a criminal offense. If this cannot be established, you cannot be found guilty of identity theft.
2. You had no Willful Act
Another element to prove in identity theft cases is willfulness. If you willfully took the other person’s information, then you will be found guilty of the offense. If you did not obtain the information willingly or did not intentionally go out of your way to gain the knowledge, you are not guilty of the offense.
For instance, you ask your friend to use their computer, and they agree. On opening it, the first document you come across is an open file containing their personal information. The person can accuse you of opening the file to have their details. However, this must be proven beyond any doubt. If you never went out of your way to find the information, you are innocent of the offense.
Another example would be when you meet a friend at the park. You sit on a bench and talk then part ways. While your friend is seated, he drops his wallet, and you find it later. Your friend may report he lost his wallet with his information in it. On returning it, you may get accused of obtaining their details for fraud. However, you did not willfully find their data, and your lawyer will show the court this fact. When this is established, the charges against you may be dropped.
3. You had no Intention of Defrauding the Person
You will be found guilty of identity fraud if you had the other person’s information with the intention of committing fraud. Remember, the prosecutor is not required to prove that you defrauded to be found guilty but that you had the intention to deceive.
This is a difficult element to prove in court. For this reason, it is a legal defense to show that you had no intention of defrauding the person. For instance, if you were playing a practical joke against a person by hiding their documents, the person can become angry and accuse you of identity theft. However, your friend and the prosecutor must prove you had plans to defraud.
4. False Accusations
This may seem far-fetched, but it is possible. If a person has a vendetta against you, they can frame you for identity theft. The person can report their documents lost and plant them on you. Without your knowledge, you are searched, and the papers are found. If this happens, charges on identity theft will be brought against you.
A person can also frame you with another person’s documents and have you charged with the offense. With a lawyer, he or she will demand to have the details of the informant and interview them to establish their motive behind the allegations. Your criminal defense attorney will investigate the circumstances of the claims and have you acquitted on false charges.
5. Mistaken Identity
You can get accused of identity theft on mistaken identity. For instance, a person can steal another person’s information to commit computer fraud. The hacker or perpetrator to hide their status can log into the computer system using your details but to defraud another person or institution.
When the police investigate the offense, you are arrested for the crime you never committed. Your lawyer will investigate the allegations and provide evidence to show you were used without your knowledge. If this is sufficiently proven in court, you are innocent of the crime, and the charges against you dropped.
Penalties for Identity Theft
In California, identity theft is a criminal offense prosecuted as a wobbler. The prosecutor will look at the criminal background of the offender and decide whether to prosecute it as a misdemeanor or a felony. The circumstances or facts of the crime will also be considered.
When charged with a misdemeanor, the penalties are less severe compared to those of a felony charge. A misdemeanor conviction will have the defendant face the following penalties:
Summary or misdemeanor probation
County jail incarceration for a year or less
Getting charged with a $1,000 fine
Facing both jail time and a fine or either
A felony charge means the circumstances of the offense were severe, and the defendant has prior criminal convictions. A felony conviction will see the defendant face:
Formal or felony probation
County jail term not exceeding three years
Getting ordered to pay $10,000 in fines or less
Immigration Consequences for Violating PEN 530.5
If you are an immigrant, one of your biggest concerns is what a conviction would mean concerning your immigration status. When convicted on a crime of moral turpitude, you risk deportation or inadmissibility.
When identity fraud involves fraud, it is categorized as a crime of moral turpitude. This means if you get convicted of the offense when you intended to defraud the victim, then you will face negative immigration consequences. These are severe consequences that must be avoided at all costs. This makes it crucial for an immigrant charged with this offense to find a criminal lawyer to defend them. Avoiding a conviction will mean your immigration status is safe, and should you leave the country, you can re-enter again.
Other Consequences of Identity Theft
The consequences when convicted of this offense go further than the penalties a defendant will face. When you have a criminal record, it affects many aspects of your life. This offense means you are untrustworthy. With a criminal background, the information is available for all to see. This means, when you are seeking employment, your potential employer on running your background check will see the conviction. This would make them apprehensive about giving you a job, and he or she can use it as a basis to disqualify you.
Looking for a house will also be a challenge. Most landlords want to lease their property to persons they can trust. As a result, many will do a background check on you. Your criminal record will, in most cases, deny you a house that you want.
Another significant consequence to a felony conviction is that you cannot vote while serving your prison sentence or on parole. However, your right to vote is automatically restored upon successful completion of your sentence.
When you have a criminal conviction, you cannot serve in the jury. However, if you can have your civil rights restored, then you can serve. Consulting a lawyer is critical in having back your civil rights to participate in your civil duties.
If you had a dream to serve in the army, but you have a criminal conviction, you will not realize this dream. The only way one can serve in the armed forces is when they receive a waiver authorized by the secretary of defense. Additionally, if you previously served in the army or are serving and you get convicted of a felony, you are likely to lose your military pension.
A conviction on a felony offense can further deny you a professional license despite meeting the other requirements. Some professionals lose their license to practice when convicted of a felony offense. This will destroy your career, and you will have to look for something else to do.
These are some of the consequences that a conviction for this crime can result in. Fighting to avoid a guilty verdict is critical for you.
Expungement of your Record
If you have a criminal record due to violating PEN 530.5, you can have your record expunged in California. This means, your conviction will be deleted from the public database, and no one can access it. You will legally not be required to disclose your criminal past unless applying for a job in the public sector or government agencies.
There are conditions for obtaining an expungement. When you have completed your jail sentence or probation and fulfilled all the requirements of your sentence, you will be eligible for expungement. Your lawyer will file a petition asking the judge to expunge your record. The prosecutor, in your case, can petition against it if they feel you do not deserve expungement.
The decision to delete your record is, however, left to the judge. Once the petition is received, a hearing date is scheduled. During the hearing, your lawyer will argue why your record needs to be expunged. If the prosecution is against it, they will also present their case, and the judge will make a decision.
PEN 530.5 Conviction and Gun Rights
If you do not want to lose your gun rights, you may need to fight against a conviction on identity theft aggressively. In California, when one is a convicted felon, they lose their right to own or have a gun. If accused of a misdemeanor charge, a conviction may not affect your gun rights.
However, the prosecutor may charge you with a felony for this offense. If a conviction arises from these charges, you will lose your right to have or own a gun.
Identity Theft Related Offenses
When an offense is connected to another, it means a defendant can be charged with it alongside the current offense or instead of the ongoing crime. Various crimes in California relate to identity theft. Some of these include:
Under PEN 529, it is a criminal offense to:
Impersonate a person. This means, if you pretend to be the person you are not to defraud or deceive another, you are guilty of this offense
Carry out a deed that can expose the person to prosecution or a lawsuit, or make them get charged to pay money. If you also carry out the personation for personal gain, you will be guilty of the offense.
When charged with identity theft, and if you used the credit cards of the victim to buy things for yourself, you also commit credit fraud. This means you will face criminal charges for identity theft as well as credit fraud. Some of the things you can do and have you charged with this offense include:
Using a debit or credit card belonging to another person without their permission
Using your card to purchase things when you are aware it is not connected to any funds
Buying goods with a stolen debit card
PEN 470 Forgery
This is another offense that closely relates to that of identity theft. You are charged with forgery when you falsify another person’s signature, or you alter documents fraudulently. Based on the circumstances of the offense, a perpetrator of identity theft can also be charged with forgery.
Find a San Diego Criminal Defense Attorney Specializing in Identity Theft Near Me
The penalties associated with identity theft go beyond the usual jail/prison sentence and court fines. For instance, you can face immigration consequences as well as get additional charges for related offenses such as credit fraud and forgery. We at the San Diego Criminal Attorney advise you to get in touch with an experienced fraud attorney to help you fight the charges as soon as possible. If you need the services of our top-notch attorneys today, call us at 619-880-5474.