Penal Code 530.5 PC – Identity Theft – California Criminal Law

Penal Code 530.5 PC defines identity theft as when the perpetrator “obtains personal identifying information…of another person 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.”

The offense is a wobbler, meaning the charges can be filed as a

• misdemeanor or
• a felony.

A conviction is punishable by 3 years in jail or prison.

Personal identifying information includes things such as:

• names,
• addresses and telephone numbers, and
• account numbers,
• driver’s license numbers and passport information.

The full language of the statute reads as follows:

530.5 (a) 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.

(b) In any case in which a person willfully obtains personal identifying information of another person, uses that information to commit a crime in addition to a violation of subdivision (a), and is convicted of that crime, the court records shall reflect that the person whose identity was falsely used to commit the crime did not commit the crime.

(c) (1) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another 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.

(2) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and who has previously been convicted of a violation of this section, 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.

(3) Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of 10 or more other persons 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.

(d) (1) Every person who, with the intent to defraud, sells, transfers, or conveys the personal identifying information, as defined in subdivision (b) of Section 530.55, of another 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.

(2) Every person who, with actual knowledge that the personal identifying information, as defined in subdivision (b) of Section 530.55, of a specific person will be used to commit a violation of subdivision (a), sells, transfers, or conveys that same personal identifying information is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment.

(e) Every person who commits mail theft, as defined in Section 1708 of Title 18 of the United States Code, 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. Prosecution under this subdivision shall not limit or preclude prosecution under any other provision of law, including, but not limited to, subdivisions (a) to (c), inclusive, of this section.

(f) An interactive computer service or access software provider, as defined in subsection (f) of 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.

Examples

• signing someone else’s name on a check.
• using another student’s school I.D. to pay for school lunch.
• giving a police officer someone else’s driver’s license information to avoid a ticket.

Defenses

A defendant can challenge an accusation under this statute with a legal defense. Common defenses include showing that there was:

• no unlawful purpose,
• no willful act, and/or
• no intent to defraud.

Penalties

A violation of this code section is a wobbler offense. This means that a prosecutor can charge it as either a:

• misdemeanor, or
• felony.

A misdemeanor conviction is punishable by imprisonment in county jail for up to one year.

A felony conviction is punishable by custody in jail for up to three years.

In lieu of jail time, a judge can award either:

• misdemeanor (or summary) probation, or
• felony (or formal) probation.

Our California criminal defense attorneys will address the following in this article:

• 1. How does California law define criminal identity theft?
  • 1.1. Personal identifying information
  • 1.2. Willfully obtaining and unlawful purpose
  • 1.3. Fraud
• 2. Are there legal defenses to 530.5 PC?
  • 2.1. No unlawful purpose
  • 2.2. No willful act
  • 2.3. No intent to defraud
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can a person get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. What are some tips for a person to avoid having his identity stolen?
• 8. What are some remedies for victims of identity theft?
• 9. Are there related offenses?
  • 9.1. False personation – PC 529
  • 9.2. Credit card fraud
  • 9.3. Forgery – PC 470
  • 9.4. Mail theft – PC 530.5e

1. How does California law define criminal identity theft?

Penal Code 530.5 PC makes identity theft a crime in four situations. These include:

1. willfully obtaining another person’s personal identifying information and using that information for any unlawful purpose without that person’s consent.
2. taking another person’s personal identifying information, without that person’s consent, with the intent to commit a fraud,
3. selling, transferring or providing the personal identifying information of another person, without that person’s consent, with the intent to commit a fraud, and
4. selling, transferring or providing the personal identifying information of another person with the actual knowledge that the information will be used to commit a fraud.¹

Questions often arise under this statute on the meaning of:

• personal identifying information,
• willfully obtaining and unlawful purpose, and
• fraud.

1.1. Personal identifying information

For purposes of this statute, personal identifying information includes information such as:

• a person’s name, date of birth, address and telephone number,
• tax I.D. and social security numbers on one’s social security card,
• driver’s license numbers with the Department of Motor Vehicles and passport information,
• school I.D. and employee I.D. numbers,
• mother’s maiden name,
• bank account information and/or credit card numbers,
• financial information on IRS tax returns, and
• information contained in birth and death certificates.²

1.2. Willfully obtaining and unlawful purpose

PC 530.5 says a person cannot:

• willfully obtain someone’s personal identifying information
• for an unlawful purpose.³

Someone commits an act willfully when he does it willingly or on purpose.⁴

An unlawful purpose includes unlawfully obtaining, or attempting to obtain:

• credit,
• goods,
• services,
• real property, or
• medical information.⁵

Note that a district attorney does not have to prove a defendant acted with an intent to defraud to be guilty under 530.5 PC.⁶

1.3. Fraud

The term “fraud” refers to a deliberate act that is designed to:

1. secure an unfair or unlawful gain, or
2. cause another person to suffer a loss.

Note that, for purposes of proving someone guilty under this statute, it is not necessary that:

• anyone was actually defrauded, or
• anyone actually suffered a loss.⁷

Example: Marcos steals his neighbors bank and credit card information through a phishing email on social media. He plans on using them to purchase a new television for his home. Here, Marcos is guilty of identity theft. He took a deliberate act that was designed to cause his neighbor to suffer a financial loss. He is even guilty of being an identity thief if he does not succeed in his plan.

2. Are there legal defenses to 530.5 PC?

A defendant can beat a charge of identity theft with a legal defense.

Three common defenses are:

1. no unlawful purpose,
2. no willful act, and/or
3. no intent to defraud.

2.1. No unlawful purpose

Recall that a person is only guilty under PC 530.5 if he took personal information for an unlawful purpose. This means it is a defense for an accused to show that he was not going to break the law. Perhaps, for example, he took certain information to compile a report.

2.2. No willful act

Also, recall that a person only commits the crime if he took some willful act to take personal information. Therefore, it is a defense to say that someone did not take certain information on purpose. Perhaps, for example, the defendant got someone else’s information by accident.

2.3. No intent to defraud

Depending on the facts of a case, a prosecutor may have to prove an accused acted with the intent to defraud to show guilt. This means it is a defense for a defendant to say he did not act with this requisite intent.

3. What are the penalties?

The crime of identity theft is charged as a wobbler offense. A wobbler is a crime that a prosecutor can charge as either a:

• misdemeanor, or
• felony.

If charged as a misdemeanor, the crime is punishable by:

• misdemeanor (or summary) probation,
• custody in county jail for up to one year, and/or
• a maximum fine of $1,000.⁸

If charged as a felony, the offense is punishable by:

• felony (or formal) probation,
• imprisonment in state prison for up to three years, and/or
• a maximum fine of $10,000.⁹

4. Are there immigration consequences?

A conviction under these laws may have negative immigration consequences.

California law says that a non-citizen can be:

• deported, or
• marked as inadmissible.

if he commits a crime involving moral turpitude.

California law also states that ID theft can be one of these crimes if it involves fraud.¹⁰ This means an ID theft offense with fraud in it will produce negative immigration results.

5. Can a person get a conviction expunged?

A person can get an expungement following a conviction for ID theft.

The requirements for this are that the defendant must successfully complete:

• probation, or
• a jail sentence (whichever is applicable).

An expungement is favorable because a defendant is able to avoid many of the hardships caused by having a conviction on his/her criminal history.¹¹

6. Does a conviction affect gun rights?

A conviction under this statute may cause a defendant to lose his gun rights.

California law says that convicted felons cannot own or possess a gun.

Recall that a PC 530.5 violation is a wobbler. And, a prosecutor can charge it as a felony.

An accused then will lose his gun rights if he is convicted of felony identity theft.

7. What are some tips for a person to avoid having his identity stolen?

A person should do the following to help reduce the risk of ID theft:

1. avoid giving out personal information to people/sources that are not trustworthy,
2. destroy or shred documents and old credit cards,
3. invest in and install a mailbox key lock,
4. create smart passwords,
5. frequently check online accounts with financial institutions for unfamiliar withdrawals,
6. frequently check credit reports from the credit bureaus,
7. avoid using a public internet source to view sensitive information,
8. be on the lookout for the latest scam and any other warning signs of ID theft, and
9. change passwords after any reported data breaches

Also see the Federal Trade Commission (FTC) website.

8. What are some remedies for a victim of identity theft?

California’s Attorney General’s office has published a checklist as an identity theft resource for victims to follow.

Some of the most important things are for the identity theft victim to:

1. report identity theft to the three major credit reporting agencies (Equifax, Experian, Transunion) and set up a fraud alert,
2. report the crime to a law enforcement agency (file a police report),
3. call creditors to see if the thief opened any new accounts,
4. request free credit reports from annualcreditreport.com,
5. carefully review credit reports and credit scores,
6. consider a credit freeze,
7. enter his name into the California ID Theft Registry,
8. file a report with identitytheft.gov,
9. check personal computer for malware, and
10. invest in data security- and identity theft protection software

9. Are there related offenses?

There are four crimes related to ID theft. These are:

1. false personation – PC 529
2. credit card fraud,
3. forgery – PC 470, and
4. mail theft – PC 530.5e.

Note that identity theft is illegal under federal law as well.

9.1. False personation – PC 529

Penal Code 529 PC is the California statute that defines the crime of “false personation. This section makes it a crime to:

1. “personate” someone falsely (that is, pretend to be them), and
2. perform any other act that might cause the person to become liable to a lawsuit or prosecution, become obligated to pay money, or which might cause the defendant to get some benefit from the impersonation.

9.2. Credit card fraud

Penal Code Sections 484e, 484f, 484g, 484h, 484i, and 484j all make it a crime for a person to commit credit card, debit card, and/or access card fraud.

Examples of crimes under these sections are:

• using someone else’s credit or debit card without that person’s consent.
• using a personal credit card knowing that it is connected to an account with no funds in it.
• using a stolen debit card to purchase goods.

9.3. Forgery – PC 470

Per Penal Code 470 PC, a person commits forgery when he:

• falsifies a signature, or
• fraudulently alters certain documents.

Note that a person can be charged with both:

• ID theft, and
• forgery

depending on the facts of the case.

9.4. Mail theft – PC 530.5e

Penal Code 530.5e PC says that a person commits the crime of mail theft if he:

• steals or takes mail from a mailbox or receptacle,
• uses fraud or deception to obtain mail from one of these sources,
• removes the contents of any stolen mail, and
• destroys or hides any stolen mail.

Note that people sometimes commit mail theft in order to:

• gain access to personal identifying information,
• so that they can commit ID theft.

• “Nevada ‘Identity Theft’ laws,” and
• “Colorado’s Identity Theft Law.”

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