Identity theft costs individuals and institutions billions of dollars every year. Fraudulent transactions using another person’s identifying information could also lead to the wrongful conviction of the person whose information was stolen.
The concerns and losses directly related to identity theft have led to legislative developments, which encourage the conviction of offenders. Attorneys at Darwish Law work with defendants charged with identity theft and related white-collar crimes.
Our attorneys understand the laws and cases that have a bearing on the possible outcome of the case.
Read on to familiarize yourself with identity theft in California.
Overview and Legal Definition of Identity Theft
Advancements in technology have led to a rampant increase in fraudulent offenses, especially white-collar crimes. Furthermore, identity theft is a clueless offense since the victim is usually unaware of the crime going on until the criminal has done considerable damage to their reputation and finances.
Most people learn of identity theft when their money goes missing, or they incur debts they are unaware of.
Identity theft occurs through different means that keep evolving with time, from the methods of collecting information to the uses of that information. The common ways identity thieves obtain personal information include:
- Through mail theft
- By rummaging through a person’s trash to recover documents and information that might be there
- Calling the victim by phone to “verify” certain information
- Discarded electronics such as phones and computers
- Through hacking and computer-related crimes
- Through phishing, for instance, when a fraudster sends an email that requires your personal identifying information before you can access certain promised benefits
The use of that information once collected leads to different types of identity theft. Identity theft can also be in different forms, such as:
- Criminal Identity Theft: Criminal identity theft occurs when an offender gives another person's personal identifying information to avoid criminal liability. These cases are not as common as financial identity theft but are no less damaging. The victim usually learns that identity theft has occurred when they receive negative employment actions or are summoned to appear in court for an offense they did not commit. Criminal identity theft, especially where you face charges for a crime, requires a criminal attorney to prove your innocence.
- Financial Identity Theft: Financial identity theft is the most common form of crime that encompasses all offenses where the offender uses the identifying information of the victim to gain a financial advantage. Financial identity theft leads to billions in losses every year for organizations, individuals, and governments. Most financial identity theft instances are discovered when the victim receives charges or calls from debt collectors for debts they did not incur.
- Identity Cloning: Identity cloning is a form of identity theft where the offender assumes another person's identity to conceal their own. This can happen among people who want to disappear from the grid, commit immigration fraud, or people who want to avoid their financial obligations. Identity cloning can also happen as part of organized crime when the offenders do not want the crime traced to them.
- Medical Identity Theft: Medical identity theft occurs when you use another person's information, including their name and health insurance information for your treatment.
- Child Identity Theft: Child identity theft occurs when you use the social security number of a minor to open credit lines, buy homes, or conduct any other business to gain an advantage.
California Penal Code Section 530.5 defines identity theft as the offense of taking another person’s identifying information and providing it for use or using it unlawfully or fraudulently.
The offense can occur in one of the following instances:
- You willfully obtain someone else’s personal identifying information without that person's consent and with the intent to use that information unlawfully or fraudulently.
- You take someone’s personal identifying information without his or her consent to commit fraud.
- You sell, transfer, or provide another person's identifying information without the owner's consent and with the intent to commit fraud.
- You sell, transfer, or provide another person’s personal identifying information knowing that the information you sell, transfer, or provide will be used for fraud.
Personal identifying information refers to information that is unique to that person, for example:
- Date of birth
- Telephone number
- Social security number
- School or employee I.D. number
- Mother’s maiden name
- Bank account information
- Credit card numbers
- Information on birth or death certificates
Some of the unlawful uses of personal identifying information include obtaining or attempting to obtain products, credit, goods, real property, services, and medical information unlawfully.
Fraudulent actions give the perpetrator an unfair or unlawful advantage that causes another person to suffer a loss.
Most investigations for identity theft begin when the victim learns that their information is being used illegally. For example, the victim notices credit card charges that they did not make. After reporting such incidents to their bank or law enforcement, an investigation begins.
Law enforcement officials might also discover identity theft offenses during investigations related to other crimes like terrorism.
Investigations often require the collaboration of other experts like financial crimes experts who understand the common behavior of identity theft crimes. Other collaboration includes work across law enforcement groups from different state governments or the federal government depending on the extent of the crime.
Defenses for Identity Theft
Preparing a solid defense strategy makes a difference in every criminal case. A defense strategy is never a straightforward process of identifying the applicable laws. It involves deeper legal research into the applicable state laws, previous cases, and developments in research related to the offense.
Attorneys spend considerable time preparing a legal defense by exploring the case’s circumstances, the evidence the prosecution has, and possible angles from which they can approach your case.
Some circumstances will include how you obtained the information, your next steps, and additional offenses you might have committed using the information. Your attorney will also investigate actions by the police and investigators working on your case to determine whether they violated some laws that make their evidence inadmissible.
In some cases, lawyers can negotiate a plea bargain, and in even better circumstances, dismissal of the case without a trial.
Your attorney will discuss the possible expectations (not the actual result) of the case. For instance, where evidence is overwhelmingly against you, the most probable outcome is a conviction at trial or a plea bargain.
Some lawyers will want to know whether you committed the crime, while others prefer not to know. However, all attorneys will need to know critical information that could affect the outcome of the case. For example, you should not hide the details of a previous white-collar crime or your immigration status.
The latter is particularly sensitive for immigrants as a conviction for identity theft could result in removal proceedings and deportation.
Some of the defenses you can use for identity theft include:
1. No Unlawful Purpose
For you to be guilty of identity theft, you must have taken someone’s identifying information unlawfully. However, if you collected that information for a lawful purpose, you are not guilty of the offense.
Unlawful ways you could use another person's identifying data include selling this data, using the information to create fraudulent documentation, or accessing that person's finances.
2. No Willful Act
The law punishes willful collection of another person’s identifying information for fraudulent use. However, if you found this information accidentally, then you cannot be guilty of identity theft.
You might also be a victim of another person's criminal activity, for example, if that person forces you to commit identity theft.
Duress is usually a defense if you can prove that you had a reasonable belief that the person would cause harm to you or another person. Duress could also occur due to entrapment by a police officer, who manipulates you through constant demands or threats into committing identity fraud.
3. Illegal Search and Seizure
Police handle many identity theft cases related to organized crime. Therefore, they might discover identity theft violations as part of sting operations related to other offenses like drug crimes.
In such a case, they might collect evidence that becomes inadmissible since they did not have a warrant to search for that evidence. They might also have searched for evidence in a location not covered by the warrant.
You are guilty of identity theft if you use personal identifying information such as passwords, credit card numbers, and bank information without the owner's consent.
Consent from the owner of that information will apply if the person gave their consent with an understanding of the intended use of the information. In addition, you must have used the information for that use, to which the owner consented.
For example, the person consented to provide their personal information to access a service, like services from internet service providers. However, you cannot use that information to gain an undue advantage or transfer it to facilitate fraud.
5. No Intent to Defraud
The prosecution must also prove that you intended to use that information to commit fraud. Without criminal intent, you cannot be convicted of identity theft. The prosecution relies on circumstantial evidence to determine your intent.
When circumstantial evidence is absent or is insufficient to prove your intent to commit fraud, the prosecution cannot prosecute you for identity theft unless it can still prove that you intended to use the information for any unlawful purpose.
6. Criminal Identity Theft
Criminal identity theft occurs when another person uses your information to commit a crime, leading to a criminal record under your name. In such a case, you have to prove that you were not the person who committed the offense to prevent a conviction.
Criminal identity theft is different from the crime itself since you are also a victim of the offender. In addition to clearing your name, you should enroll in the identity theft registry and acquire documentation, which you can present to employers to avoid the negative consequences of a crime you did not commit.
Penalties of Identity Theft
Identity theft is a wobbler offense in California. The penalties upon conviction depend on whether the prosecution charges the offense as a felony or a misdemeanor.
Misdemeanor identity theft is punishable by summary probation, a sentence of up to one year in county jail, and a fine not exceeding $1,000.
Felony identity theft is punishable by formal probation, a state prison sentence of up to three years, and a fine not exceeding $10,000. You will also lose your gun rights if you are convicted of identity theft as a felony.
For both misdemeanor and felony offenses, the court requires you to pay full restitution to the victims.
In addition to criminal penalties, identity theft is considered a crime of moral turpitude under immigration law. A conviction could result in negative immigration consequences for non-citizens like deportation and inadmissibility. Identity theft is considered a crime of moral turpitude if it involves the commission of fraud.
Federal Identity Theft
Identity theft is a concern across the country due to its rapid growth, thanks to the widespread use of computers. Federal law enforcement bodies and the Federal Trade Commission are keen on preventing identity theft, which is usually conducted as part of organized terrorist activities.
The 1998 Identity Theft and Deterrence Act lists identity theft as a federal offense. Federal identity theft involves knowingly transferring or using, without lawful authority, another person’s means of identification with the intent to commit, aid, or abet, any unlawful activity that violates Federal law or that is a felony under any applicable State or local law.
Federal courts can prosecute identity theft under certain circumstances such as:
- The victim and the offender are in separate states.
- The offender used the identity of the victim to commit a federal crime.
- The offender used the identity to commit a felony under state laws.
Federal courts can also prosecute identity theft offenses committed by an offender who is in the same state as the offender.
A conviction for federal identity theft can lead to thousands of dollars in fines and a sentence of up to fifteen years in federal prison. The court might impose enhanced penalties for identity theft that occurs during and in relation to another felony.
You will receive an additional five years if you commit identity fraud during and in relation to terrorism.
You could also be convicted with similar penalties for attempting to commit identity theft. Federal courts also mete out similar penalties to people who conspire to commit identity theft.
Federal courts could also charge you with other crimes such as postal fraud, check fraud, immigration fraud, medical fraud, and forgery, in addition to identity theft.
For both state and federal law, every instance of identity theft counts as a separate count of the offense. Therefore, if you use another person’s personal identification information three times to identify yourself in three different instances, you will be guilty of three identity theft counts.
Identity theft is a white-collar offense that closely relates to other crimes such as:
False personation is the use of another person’s identity to harm that person or gain an undue advantage. False impersonation occurs when the action you commit leads to criminal or civil liability for the victim. Like identity theft, the offense is a wobbler.
Credit Card Fraud
Credit card fraud occurs when someone uses a credit or access card to obtain money, goods, or services that they are not legally entitled to. It can involve offenses that include:
- Stolen credit cards
- Forged credit cards
- Fraudulent use of credit cards
- Credit card fraud by retailers
Credit card fraud can be convicted as forgery, petty theft, or grand theft, depending on the offense’s circumstances.
Some people obtain personal identifying information from their victims by stealing their mail. Mail theft was traditionally the primary source of personal identifying information that criminals relied on, and most continue to steal people’s mail.
Mail theft involves the following:
- Taking or stealing mail from a mailbox or receptacle
- Hiding stolen mail
- Removing stolen mail
- Using fraud to obtain mail from a mailbox or receptacle
You could be charged with both forgery and identity theft if you use someone’s personal identifying information to create a false signature or documents (such as credit cards).
Some of these offenses could be charged alongside identity theft, meaning that you might end up with more severe penalties. You could also be charged with other offenses such as immigration, check, medical, and real estate fraud.
Criminal Defense Attorney Near Me
A conviction for any crime never looks good on your record. It places extra stress on finding employment and, in some cases, building dependable relationships when people learn of your conviction.
When facing identity theft charges, you have better chances when fighting these charges if you are working with an attorney. Apart from having legal expertise, an attorney can look at your case from an objective perspective, thus developing a sound defense strategy.
At Darwish Law, we evaluate the case and find different angles from which to approach the case. While we hope that the case could end before proceeding to trial, we prepare a strong defense strategy to get us through all the stages of the case.
Call us at 714-887-4810 for a free consultation.