Identify theft and internet crimes, in general, are a constant topic in the news these days. Between a large number of unsophisticated victims and numerous online vulnerabilities available to be taken advantage of, online identify theft prosecutions are becoming more frequent. But sometimes these prosecutions can stem from little more than a misunderstanding.
An identity theft conviction can result in a sentence in county jail or even a state prison, depending on the circumstances, the sophistication of the crime and the defendant’s criminal history.
If you've been charged with online identity theft, it is important you find an experienced criminal defense attorney that can explain the charges against you and help you consider all of your options.
Online Identity theft is just one type of the broader crime of identity theft, defined by California Penal Code § 530.5. Identity theft is taking someone’s personal information without their knowledge and using it to commit some type of fraud. You are guilty of identity theft if you willfully obtain personal identifying information of another person with 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 code goes on to outlaw instances of specific conduct, including:
Intentionally obtaining personal identifying information of another without consent to commit an unlawful act;
Acquiring another person's identifying information without their consent to commit fraud;
Providing, transferring or selling the personal identifying information of another unlawfully to commit an intentional fraud; or
Providing, transferring or selling personal identifying information of another while knowing that the information will be used to commit fraud.
Other examples are unauthorized use of another person's e-mail, or intercepting and using the personal identifying information of another online. Any type of identity theft perpetrated through the use of the internet is considered online identity theft.
The California Penal Code repeatedly mentions personal identifying information, but what specifically qualifies? California Penal Code § 530.55 defines personal identifying information as including but not limited to a person's:
Name, address, telephone number, or place of employment
Health insurance number
School ID number
Driver's license number
Social security number
Employment ID number
Bank account number
Mother's maiden name
Personal identification number (PIN)
Alien registration number
Date of birth
Biometric data like fingerprints or retinal scans
Credit card numbers
Passport number
Computer password
The statute also includes the open-ended phrase “or an equivalent form of identification,” allowing a prosecutor broad authority on determining what information could lead to a prosecution for online identity theft.
A charge for online identity theft in California is a “wobbler.” Under California law, a wobbler is any charge that can be treated as either a misdemeanor or a felony at the discretion of the prosecutor. Factors a prosecutor will consider when determining the status of your case include the facts regarding your arrest and your criminal history. For example, if a person simply buys one item, their punishment will usually not be as harsh as the person who spent thousands of dollars. Wobblers are an area of the law where an experienced defense attorney can pay major benefits. An attorney may be able to negotiate a wobbler from a felony to a misdemeanor, greatly reducing the maximum sentence you could be facing.
Ultimately, if you are charged with misdemeanor online identify theft, you will face a maximum jail sentence of 1 year. What's more, you will also face a maximum fine of $1,000. If you are charged with felony online identity theft, you face a prison sentence of 16 months, two years, or three years in a California state prison. Additionally, you face a maximum fine of $10,000.
There are several defenses that could apply to your case, and an experienced L.A. County criminal defense attorney will consider all possibilities when reviewing your situation. There are several elements required to prove identity theft, and if the prosecutor fails to prove even one you will be acquitted. Most of these defenses focus on an individual element of the crime of online identity theft.
Identity theft is a crime of intent, meaning you had to intend to commit fraud in order of being convicted of the crime. Merely possessing the personal information of another person isn't a crime. In fact, possessing that information without their consent is also not a crime so long as you don't possess it with the intent to use it fraudulently.
Much like with lack of intent, you haven't committed a crime if you possess the personal information of another person if you had no intent to use it unlawfully. That means even if you may have a valid defense even if you acquire personal data without consent if you had no plans to use it illegally.
Another case in which you can possess the personal identifying information of another without committing a crime is when it is done with their consent. If that person consented to you possessing the information you haven't committed a crime.
Even if the prosecutor is able to come up with evidence that satisfies the requirements of online identity theft, you have a valid defense if your attorney can prove any of the evidence against you was collected illegally. Law enforcement can't simply pull over your vehicle or search your home at will. They need a warrant for a search in most cases, and that includes searching your computer for evidence linking you to the alleged fraud. If the police seize your property or search your home illegally, your attorney may be able to have any evidence collected excluded from your trial.
A Conviction for Online Identity Theft Can Have Lasting Consequences. If You or a Loved One Have Been Arrested for Online Identity Theft in L.A. County, contact William Kroger Attorney at Law Today.
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This page was reviewed and approved by William S. Kroger, a leading criminal defense attorney in Los Angeles. Mr. Kroger has decades of experience defending clients in both state and federal courts. He is recognized for his strong trial skills and dedication to protecting the rights of the accused. Throughout his career, he has successfully represented clients facing a wide range of serious criminal charges. His personalized defense strategies are designed to achieve the best possible outcome in every case. Clients trust Mr. Kroger for his knowledge, commitment, and proven results.
He is also an active member of respected legal organizations, including the American Bar Association and the National Association for Criminal Defense Lawyers. With his expertise and reputation, William S. Kroger is regarded as one of California’s top defense lawyers.
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