The LA Criminal Defense Attorney is one of the leading criminal defense firms in Los Angeles County. For many years, we have aggressively fought for our clients' rights and have been successful in avoiding sentencing penalties. Many of the charges that people face in Los Angeles such as identity theft may arise out of mistaken identity, lack of probable cause for the arrest, wrong accusation, among others. We can use these reasons to help defend you from your identity theft charge.
What is Identity Theft?
According to a 2018 Identity Fraud Research done by Javelin Strategy and Research, approximately 16.7 million people in the USA became victims of identity theft in 2018 alone, and a total of $16.8 billion was stolen. This crime is possible whenever there is an opportunity for someone to access and use another person’s data for personal benefit. Simply put, anyone can become a victim to identity theft.
Also known as identity fraud, identity theft takes place when a person willfully acquires another person’s data without the other person’s consent, with an intent to commit fraud. It is also giving out, selling or transferring somebody else's information while knowing that the details will be used towards a fraudulent end.
Identity theft revolves around information just like bank raiding revolves around money. The information acquired could be social security number, tax identification, employee I.D number, credit or debit card numbers, bank account, passport information, medical records and any piece of personal identifying information with financial history.
There are four categories/subdivisions of identity theft as outlined under California Penal Code Section 530.5 PC law. They include:
California Penal Code Section 530.5 (a) PC: Unlawful use of someone else's personal identifying information;
California Penal Code Section 530.5 (c) PC: Possessing someone else's personal identifying details fraudulently;
California Penal Code Section 530.5 (d)(1) PC: Fraudulent transfer, conveyance or sale of someone else's personal identifying information; and
California Penal Code Section 530.5 (d)(2) PC: Knowingly transferring, transporting or selling someone else's personal information to enable its unlawful use.
Important Terms in Identity Theft Cases
Willfully Acquiring Another Person's Data
Willfully means deliberately and doesn't necessarily suggest malice. Regarding the offense in question, willfully acquiring another person's data does not imply you actually sought the information. It means you obtained the information freely and you used it to commit fraud intentionally.
For instance, you receive a text message with another person's email logins. Then, you use the information to log in to the individual's Instagram account, edit their profile, include an explicit narrative of yourself and write explicit direct messages to their friends. This would be willfully acquiring the other person’s data, even though you didn’t seek the login information from the victim.
According to the California criminal fraud law, fraud is an intentional act fashioned to get an unlawful or unfair gain or cause somebody else loses.
Regarding identity theft, fraud involves financial benefit to the defendant which leads to loss of money by the victim. Making purchases using someone's credit card or using their personal details to collect pension are perfect examples of fraud with respect to identity theft.
Referencing to the Instagram example above, you may argue that you didn't commit any crime by sending the message and hence you are innocent. The law differs and points out the term ‘'unlawful'' does not only allude to the criminal activity. It also involves an illegal act by law whether civil or not. By subjecting your victim to embarrassment or ridicule, you would be guilty of a civil offense, hence, guilty of the offense.
Federal Identity Theft (Title 18 U.S.C. 1028)
Since identity fraud is prevalent and can lead to substantial personal losses, the US government imposed the Identity Theft & Assumption Deterrence Act of 1998 as federal law. Unlike California's identity theft law, this law is more across-the-board. It also prohibits:
Knowingly issuing another person's identification,
Knowingly transporting stolen personal documents, and
Knowingly transferring, possessing, trafficking or producing tools that will make fake identification documents
Conviction of identity theft is punishable by huge fines and a 30 years' sentence in federal prison.
The Common Types of Identity Theft
Social Security Identity Theft
This is a prevalent type of identity theft. This is because the social security number is one of the most valuable government-issued identity assets any American can have. Once a social security number gets lost, a person can obtain a new social security card (after claiming the old one got lost) and start receiving the social security benefits you have worked for your entire life. These benefits include welfare benefits, medical and dental care, and housing vouchers.
Moreover, there is a possibility of opening a credit card account or forge fraudulent documents such as a passport.
Financial Identity Theft
This type of identity theft occurs when your credit card or bank account information is stolen and used to make purchases. More often than not, a person will max out the credit card or use the account's information to get financial services or other credit cards. This could lead to a massive loss of money, affect your future purchasing power, low credit score, huge debts, and financial insecurity.
Driver's License Identity Theft
It does not take an expert to commit driver's license identity theft. What a person needs to do is get a driver's license, which can occur if it gets lost and falls into the wrong hands. In most cases, a perpetrator uses the driver's license to protect their identity if caught in a compromising situation like reckless driving or driving under the influence of alcohol or drugs. When they identify themselves as you, they could be successful in avoiding receiving charges as you are the one the police will locate.
Medical Identity Theft
Medical identity theft occurs when offenders use another person’s medical identification number to obtain a medical procedure or specific prescription medication. For example, if your personal information was used to access medical services or products, in the future this information could be used by doctors to make decisions associated with your health. In any event, you are unaware of the error on your record, this could lead to medical decisions that affect your wellness and health negatively. It can also result in financial losses.
Criminal/Character Identity Theft
Criminal identity theft occurs when a person commits a crime while using another person's name. Upon being arrested by police, the person will also use the fraudulent ID.
Child identity theft
As the term suggests, child identity theft occurs when the victim is a child. Usually, this crime is committed by a relative to access loans, defraud the government, commit crimes, and create documents. Since kids have no reason to monitor their credit score, they will remain in the dark of the offense until they come of age and are need of a loan.
This type of fraud could stop you from purchasing assets like a vehicle or home, not forgetting increasing the interest rates on loans offered to you.
Insurance Identity Theft
Insurance identity theft is related to medical identity theft. Effects of this crime include higher insurance premiums, challenges in settling payments and difficulties in getting medical covers later.
Tax Identity Theft
Tax identity theft occurs when identity thieves send fraudulent tax refund claims to the Internal Revenue Service (IRS) using stolen personal identifying information. This could lead to loss of funds, delay your ability to get legitimate tax refunds, and frustration.
Identity theft in California is a wobbler offense. It is, therefore, an offense that a prosecutor can file either as a felony or a misdemeanor based on the defendant's criminal history and the particulars of the case.
If charged with a misdemeanor, you could pay a fine of up to $ 1,000 or serve a one-year sentence in county jail. Felony, on the other hand, attracts a sentence of 16 months, two (2) or three (3) years or a fine of $ 1,000.
It is worth noting that every time you use somebody else's identifying information constitutes a different violation. Consequently, the above punishments apply to every crime committed even if it is against one victim.
Related Offenses to Identity Theft
Most cases of identity fraud comprise of using somebody else’s identifying information to acquire valuable goods and money. If you allegedly stole money exceeding $950, you could be charged with breaking Penal Code 487 PC California grand theft law. It is a wobbler offense and is punishable the same way as the crime in question.
If the amount is $950 and below, you could be convicted of PEN 484 PC petty theft law. The offense is usually treated as a misdemeanor and is punishable by a maximum of a six-month sentence in county jail or a fine of $ 1,000.
Penal Code 529 PC California's False Personation Law
Another related offense is falsely impersonating someone in either their private or public capacity or performing an act that may cause the person you are impersonating to be held liable to prosecution. A good example is stealing your sibling's utility card, or opening a library card in your sibling's name and later using the card to borrow books that you don't intend to return.
False personation is a wobbler under California law. If you are charged with a misdemeanor, you could face a maximum of a one-year sentence in county jail or a fine of $10,000. Felony charges carry a sentence of 16 months, two (2) years or three (3) years and up to $10,000 as fine.
California Conspiracy Law
In case one agrees to participate in using another person’s identity unlawfully, they could be charged with violating both California's conspiracy laws and identity theft regulations and laws. Violating conspiracy laws is a wobbler. You could face 18 months, two (2) or three (3) year's sentence if charged with a felony and a one-year jail sentence or a fine of $1,000 for a misdemeanor.
Penal Code 368 PC California Elder Abuse Law
This law protects the elderly from physical, emotional and financial abuse. If, for instance, you are a primary caregiver for a person above 65 years and you use that person's identifying information to receive social security payments or forge their name to cash a check, the court could find you guilty of elder abuse and identity theft.
Elder abuse is a wobbler offense. The penalties increase to up to a four-year sentence in California state prison when charged with a felony. When accused of a felony, the fine goes up to $ 6,000.
California's Attempted Crime Law (Penal Code 664 PC)
Under attempted crime law, you are punished by serving at least ½ of the prison term you could have served for identity theft charges assuming you successfully managed to commit identity theft.
However, under federal law, attempted identity theft is punishable in the same manner as identity theft.
PEN 530.5 (Mail Theft)
Mail theft takes place when you receive a mail illegally through deceit or fraud or stealing the mail from the mail carrier, post office or mailbox. Typically, mail theft charges are filed alongside identity theft if the accusation is that you got the victim's personal information from the stolen mail. This offense is a misdemeanor and subjects you to up to a one-year jail sentence.
California's Unauthorized Computer Access Law
Under PEN 502 (c) PC, it is illegal to knowingly use another person's computer, computer system or computer network without their consent. This crime could be charged alongside identity theft if there are allegations that you accessed or hacked into the victim's internet profile /account or email to obtain their personal details.
Based on the impact and type of offense, this crime could be charged either as a felony or a misdemeanor.
Legal Defenses to Identity Theft
There are several legal defenses to identity theft that an experienced lawyer can present before the court on your behalf. They include:
There was no unlawful purpose
Under Penal Code 530.5(a), it is illegal to willfully obtain somebody else's personal details and use them with unlawful purpose without the person's permission. In case you are charged with this crime but have not used the information for an illegal purpose, you should not be held guilty of identity theft.
You are wrongly accused or it is a case of mistaken identity
Innocence is the best defense. If the court establishes that you were framed of identity theft or you're a victim of mistaken identity, then your charges will be dismissed.
Perhaps, your former roommate becomes a victim of identity fraud, and since you are the only person he knows that had access to his personal information, he accuses you of the offense. Another example could be in a case where you are a primary caregiver to a senior citizen whose debit card made unauthorized purchases. The elderly person accuses you, while it is an estranged grandchild making the purchases. Both of these are examples of mistaken identity.
There are several reasons one could be charged as a result of mistaken identity or false accusations. But all is not lost. Consider hiring an experienced criminal defense attorney who knows the best investigation strategies to uncover the truth and clear the false accusations.
You did not have a fraudulent intention
If you are charged with identity theft but didn't plan to commit fraud, you should not be convicted of identity theft. Having somebody else's personal information is not an offense. It becomes a crime if you illegally use that information under Penal Code 530.5 PC (a) or with fraudulent purpose under the remaining subdivision.
You are an access software or an interconnecting computer service provider
Under Section 230 of Title 47 of the US code or Penal Code 530.5 (f), an access software or interactive computer service provider should not be held responsible for identity theft unless they sold, acquired, transferred, retained possession, or conveyed personal details with an intention to defraud.
Provided that you act in accordance with this provision and don't use the personal identifying information with unlawful intent, you're exempted from prosecution.
Do You Need a Criminal Defense Lawyer?
Unknown to most people who seek to represent themselves in court, reading books spelling out offenses, penalties, and defenses may not lead to your case's success. Any skilled lawyer will tell you there is a very big difference between reading the law and practicing it in court. This is because most identity theft prosecution rules are buried within rules and regulations. For instance, if you choose to represent yourself, you may not know whether the search conducted by police in your apartment was lawful or not.
If you consider hiring a lawyer, below are what you expect from them:
Investigate and analyze the case
The first thing any lawyer will do after meeting with you is getting as many details about your identity theft case as possible. By asking questions about the case, they learn about strengths and weaknesses about your case as well as possible defenses.
Besides that, they must investigate the matter further to determine possible avenues of acquitting you. This involves questioning law enforcement officers about the procedures used in relation to the case and talking and collecting information from witnesses that are going to be called by the prosecutor. All this information is used to build a strong defense for your case.
An attorney has the right to review the prosecution's case before it is submitted to the judge. This enables them to look for any gaps in your case as well as check for any legal facts and theories may work against your conviction.
Continued contact with you and offers a reality check
Any professional attorney should stay in touch with you and keep you updated with assessments as your case proceeds through different stages. Defense lawyers remain objective through the entire proceeding process and can provide insights into the possible outcome. These reality checks and assessments are very essential particularly when a defendant is deciding whether to agree to take a prosecution plea bargain or not. It also helps you cope with depression and embarrassment that comes from the trial.
The attorney must also make sure that their conversation with the defendant is kept confidential.
Navigating through the legal system where your case will be heard
Besides the written rules that should be adhered to, there are numerous unwritten rules used in every jurisdiction. For instance, a good defense lawyer will meet the prosecutor immediately after your arrest (before the identity theft charges are formally filed). The lawyer may choose to present witness statements and evidence that gives the prosecutor a different picture from what the alleged victim and police had said. The prosecutor can then file lesser charges like a misdemeanor instead of a felony.
Moreover, a criminal justice attorney is very instrumental in the jury selection process. They could try to have judges removed for the course if they have a feeling the jurors will be biased against you.
If the best criminal defense strategy is negotiating the charges, your lawyer should negotiate with the district attorney to lessen the charges, potential penalties or even dismiss the case. The lawyer should advise you on the advantages and disadvantages of your options.
Representation in court
Finally, your lawyer will represent you during the sentencing phase if sentenced for identity theft either because the jury convicted you or you accepted a plea bargain. The lawyer will not only try to convince the court to reduce the amount of time you will serve but also discuss incarceration alternatives.
If you are being charged with a crime feel free to contact our Los Angeles Criminal Defense Lawyer for a free consultation.