The law against identity theft as set forth in California Penal Code 530.5 prohibits the “unauthorized use of personal identifying information to obtain credit, goods, services, or medical information in the name of another person." It is not necessary that someone actually is defrauded or actually suffer a financial, legal or property loss as long as the defendant's acts can be proven beyond every reasonable doubt. Acquisition of the benefits does not actually have to occur.
The Best Criminal Defense Lawyers Will Require the District Attorney to Prove Multiple Elements Beyond Every Reasonable Doubt:
In order to prove that a defendant is guilty of identity theft, a prosecutor must be able to prove all of the following elements:
- The defendant willfully (meaning willingly or on purpose) obtained someone else's personal identifying information;
- The defendant willfully used that information for an unlawful purpose; and
- The defendant used the information without the consent of the person whose identifying information was being used by the defendant.
Our Criminal Defense Attorneys Will Apply These Defenses to a Charge of Penal Code 530.5
Common defenses to identity theft charges include:
- Consent - The defendant had consent to use the alleged victim's identity to acquire goods, services or credit.
- Insufficient Evidence- There is insufficient evidence to prove that the victim's identification was used for an unlawful purpose;
- Mistake of Fact- For example, believing that there was consent. Sometimes a simple misunderstanding of a conversation or communication can result in a mistake of fact;
- Duress- As an example, a defendant acquired someone's identity information after being threatened with physical violence;
- Intoxication- This is a defense that is used to counter the allegation that the defendant's actions were willful. Intoxication can occur from either or both drugs or alcohol (prescription or otherwise);
- Insanity- This is a specific legal defense in cases where the defendant does not understand the nature of his actions or is unable to prevent himself from taking the illegal action.
- Statute of limitations- If the District Attorney does not file charges within one year of the criminal act in a misdemeanor case or within 3 years for a felony case, the charges will be dismissed when our attorneys file a Motion to Dismiss.
Alternatives to Criminal Prosecution:
Mental Health Diversion
Some defendants who suffer from PTSD, depression or other qualifying mental disorders or developmental disabilities may qualify to participate in a Mental Health Diversion program. In the event that a client qualifies for a Mental Health Diversion program, all of the criminal proceeding in court will terminate while the defendant is in the program. Upon successful completion of the Mental Health Diversion Program, all criminal charged will be dismissed.
Participation in a Mental Health Diversion Program is an alternative to criminal prosecution. If a defendant is qualified by the Court and successfully completes the program, they may very well be eligible for a Petition to Seal which, if granted by the court, effectively eliminates any record whatsoever of the criminal charges or arrest in criminal records that are available to the public.
Military Diversion
There is favorable treatment regarding sentencing of a felony conviction for veterans or active military pursuant to PC 1170.91. In addition, veterans may be able to take advantage of a Military Diversion Program in misdemeanor cases. This is a program that benefits veterans or active military who can connect certain mental conditions to military service. Once a veteran is qualified, they are taken completely out of the prosecution process and they begin to participate in the Military Diversion Program. Once that program is completed, not only are the criminal charges dismissed but the veteran is also then in a position to seal their criminal record which will also eliminate the arrest record.
Civil Compromise
In misdemeanor cases, the best criminal defense attorneys can occasionally create a "Civil Compromise" wherein an agreement is reached with the alleged victim and restitution is made. As a result, if the victim agrees, we will file a Motion for a Civil Compromise and, if approved by the Court, full restitution is made to the victim and the criminal charges are dismissed. Once the criminal charges are dismissed, then a Petition to Seal can be filed which will effectively eliminate any record of the criminal charges or the arrest on the criminal charges in the criminal records that are available to the general public.
Penalties for Violation of Penal Code 530.5
Identity theft is a wobbler crime, meaning the defendant could be charged with a misdemeanor or a felony depending upon the seriousness of the violation.
If convicted of a misdemeanor, in violation of Penal Code 530.5, an offender may receive a one year sentence in the county jail for each violation and multiple violations may run consecutively (one after another), e.g. 5 counts could result in a five year sentence.
If the violation of Penal Code 530.5 is charged as a felony, it can result in a sentence of up to 3 years for the first charge and 1 year consecutive sentence for the remaining charges. These charges can be run consecutively or concurrently (at the same time). A violation of the Federal identity theft law could result in a sentence of 30 years in a federal penitentiary.
Criminal Record Improvement After Conviction
Even if someone is convicted of a Penal Code 530.5 violation, upon successful completion of probation, a defendant can file a Petition to Expunge their record and dismiss the charges. This adds a very favorable entry to their criminal record and is extremely helpful when applying for employment, housing, etc.
In the event that a defendant is convicted of a felony violation of Penal Code 530.5 after their probation is successfully completed, they may also petition the Court pursuant to Penal Code 17b to reduce the felony to a misdemeanor. This is a process that is available to someone who is charged with a wobbler crime such as Penal Code 530.5 and it is a process that our criminal theft attorneys are successfully involved with on a constant basis.
Remember, Ronald Dinan and Associates is a firm of experienced and aggressive criminal defense lawyers who can help in achieving the best outcome in your case. Many times, criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.
To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.
Santa Rosa – 707-571-5550
Napa – 707-252-0102
Marin – 415-491-0223
Lakeport – 707-262-0503
Ukiah – 707-462-5950
Eureka – 707-445-1348
The Actual Law Itself: California Penal Code 530.5
(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.5, 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.