San Diego Criminal Attorney – (Fraud) Identity Theft

San Diego Criminal Attorney – (Fraud) Identity Theft

An identity theft crime is when a person takes identifying information belonging to another person and using it unlawfully or fraudulently. This offense is prosecuted as a wobbler meaning you can face felony or misdemeanor charges. Additionally, identity theft can be prosecuted as a federal crime, depending on various circumstances. The penalties, if convicted, can be severe, and the repercussions of having a criminal record are even more. If you are facing charges on identity theft, it would be best to avoid a conviction if you can. Get a criminal attorney to fight these allegations against you and avoid wrongful conviction or get a favorable outcome. At San Diego Criminal Attorney, we are dedicated to ensuring our clients get a fair trial and even better results based on the circumstances.

Defining the Crime of Identity Theft according to the law

In California, the law that defines identity theft is found under PEN 530.5. Identity crime, according to this statute, is a crime under four circumstances or situations:

• Willingly taking another person’s information that identifies them and using it for unlawful purposes without their consent
• Obtaining information identifying another person without their permission intending to carry out fraud
• Giving, selling or transferring another person’s identifying information without their consent to another to commit fraud
• Transferring, offering, or selling identifying information belonging to another person with the knowledge that it will be used to commit fraud.

Under this statute, various elements need to be understood. These are:

Personal Identifying Details or Information

Concerning the law, information that is considered private and identifies a person include:

• Birthdate, names, telephone number and address
• Social security number and Tax I.D.
• Passport details and driver’s license information or number
• Employee identity number or school identity number
• Information on a credit card account or bank account information
• Details found in one’s death or birth certificate

Willfully Getting and Illegal Intent

According to PEN 530.5, an individual cannot:

• Willfully get another person’s identifying information or details
• For an illegal intention

If you are accused of this offense, it means you willfully or purposely committed the crime. An unlawful intent involves unlawfully getting or trying to get credit, goods and services, property, and medical details. For you to get a guilty verdict against a defendant, a prosecutor is not required to prove the defendant intended to defraud.

Fraud

Fraud is the deliberate deed aimed at:

• Securing an illegal or unfair gain or
• Making another person experience loss

It is important to note that to prove a defendant guilty according to this statute, it is not a requirement that:

• Anyone did get defrauded
• Anyone incurred a loss.

For instance, you go into your neighbor’s house and find they have left their wallet on the table. You decide to take their credit card to buy a T.V. set for yourself. In such a case, you will be found guilty of identity theft. This is because you deliberately acted in a way that was purposed to make your neighbor lose financially. Even if you do not go ahead with your plan, you are still guilty of the offense.

When Identity Theft Becomes a Federal Offense

As earlier stated, identity theft can be prosecuted as a federal offense, according to 18U.S.C 1028. Federal law goes further than Identity theft law in California. This means that a person can commit identity theft offense and get punished under both the California law and Federal law. The penalties, when found guilty of under the federal statute, are more severe.

Under federal law, it is an offense to:

• Display an I.D. belonging to another person knowingly
• Transfer identification documents were stolen from one person to another knowingly
• Own, transport, give or produce equipment used in producing false identifying documents deliberately.

A conviction for a federal crime in identity theft attracts severe penalties. When found guilty of this offense, you will get imprisoned for fifteen years or less as a penalty. You will also get ordered to pay a fine of $250,000, or $500,000 if an organization.

A federal conviction on this offense can also earn you imprisonment for twenty years if you commit the offense while:

• Providing for a crime in drug trafficking
• Involved in a violent crime or
• Have been convicted of identity theft offense before.

If you committed identity theft crime to enable either international or domestic terrorism, the penalties are steeper. Found guilty of the offense, you will get sentenced to thirty years federal incarceration.

Hacking in Identity Theft

A defendant can also commit the offense of identity theft through hacking. This is a popular kind of fraud that involves a person gaining unauthorized access into the computer, computer network, or data with an illegal intent.

A defendant can hack into a computer to manipulate the system or the data therein. A person can steal the login details of another person to get into a system to commit fraud without the other person’s knowledge.

The statute that discusses computer hacking is found under PEN 502. It makes it a criminal offense for a person to knowingly and without consent accesses a computer and change, destroy or delete information with the intention of:

• Executing or formulating a plan to defraud, extort or deceive
• Illegally controlling, or getting money, data, or property.

This means that, if you are found doing these things, you are also guilty of identity theft.

Legal Defenses to PEN 530.5 Violations

The penalties, when convicted of identity theft, are steep. For this reason, you need to get a criminal attorney to defend you against these allegations. Your lawyer will investigate the charges against you and evaluate all the evidence the prosecution has for the case. If there are inconsistencies with the prosecutor’s case, your attorney will identify them and use them to create doubt of your guilt.

Your lawyer will also have an opportunity to interview your accuser and look into their background. Maybe the accuser had a vendetta against you and wants to see you punished. If it is a case of mistaken identity or misunderstanding, your lawyer will establish that and formulate the best defense for you.

A lawyer is crucial when it comes to getting you a better deal. Based on the case, your lawyer may negotiate a plea deal that will get you charged with a lesser crime and avoid the hefty penalties of identity theft. Representing yourself is never a good idea mainly because you do not understand the law, or you may not notice inconsistencies with the case.

All in all, your criminal defense lawyer will come up with various defense strategies aimed at getting the charges dismissed or getting less severe penalties. Some of the defenses your lawyer will use include:

You had no Unlawful Intentions

One of the critical elements in this offense for a prosecutor to prove is your criminal intentions. According to PEN 530.5, to be found guilty, you must have taken the personal information belonging to the other person for an unlawful reason. This means, if you had no unlawful purposes, you are not guilty of the offense. In this case, your lawyer must demonstrate that you had no criminal intentions.

For instance, you find a wallet belonging to another person on the street. You pick it up intending to report it for the owner to get it. Unfortunately, you get stopped for a routine roadblock check. Unfortunately, the officer notices the wallet and asks for the owner. The wallet has the owner’s credit cards, social security cards, among other information. The officer places charges for identity theft as a result.

In such a case, the prosecution must prove that you intended to use the information belonging to another person for a criminal offense. If this cannot get established, you cannot be found guilty of identity theft.

You had no Willful Act

Another element that must get proven in identity theft cases is willfulness. If you willfully took the other person’s information, then you will be found guilty of the offense. If you did not obtain the information willingly or did not intentionally go out of your way to gain the knowledge, you are not guilty of the offense.

For instance, you ask your friend to use their computer, and they agree. On opening it, the first document you come across is an open file containing their personal information. The person can accuse you of opening the file to get their details. However, this must be proven beyond any doubt. If you never went out of your way to get the information, you are innocent of the offense.

Another example would be when you meet a friend at the park. You sit on a bench and talk then part ways. While your friend was seated, he drops his wallet, and you find it later. Your friend may report he lost his wallet with his information in it. On returning it, you may get accused of obtaining their details for fraud. However, you did not willfully get their data, and your lawyer will show the court this fact. When this gets established, the charges against you may get dropped.

You had no Intention of Defrauding the Person

You will be found guilty of identity fraud if you had the other person’s information with the intention of committing fraud. Remember, the prosecutor is not required to prove that you defrauded to be found guilty but that you had the intention to deceive.

This is a difficult element to prove in court. For this reason, it is a legal defense to show that you had no intention of defrauding the person. For instance, if you were playing a practical joke against a person by hiding their documents, the person can get angry and accuse you of identity theft. However, your friend and the prosecutor must prove you had plans to defraud.

False Accusations

This may seem farfetched, but it is possible. If a person has a vendetta against you, they can frame you for identity theft. The person can report their documents lost and plant them on you. Without your knowledge, you get searched, and the papers are found. If this happens, charges on identity theft will be brought against you.

A person can also frame you with another person’s documents and get you charged with the offense. With a lawyer, he or she will demand to get the details of the informant and interview them to establish their motive behind the allegations. Your criminal defense attorney will investigate the circumstances of the claims and get you acquitted on false charges.

Mistaken Identity

You can get accused of identity theft on mistaken identity. For instance, a person can steal another person’s information to commit computer fraud. The hacker or perpetrator to hide their status can log into the computer system using your details but to defraud another person or institution.

When the police investigate the offense, you get arrested for the crime you never committed. Your lawyer will investigate the allegations and provide evidence to show you were used without your knowledge. If this is sufficiently proven in court, you are innocent of the crime, and the charges against you dropped.

Penalties when Found Guilty of Identity Theft

In California, identity theft is a criminal offense prosecuted as a misdemeanor or a felony offense. In deciding how to try the crime, the prosecutor will look at the criminal background of the offender. The circumstances or facts of the crime will also be considered.

When charged with a misdemeanor, the penalties are less severe compared to those of a felony charge. A misdemeanor conviction will have the defendant face the following penalties:

• Summary or misdemeanor probation
• County jail incarceration for a year or less
• Getting charged with a $1,000 fine
• Facing both jail time and a fine or either.

A felony charge means the circumstances of the offense were severe, and the defendant has prior criminal convictions. A felony conviction will see the defendant face:

• Formal or felony probation
• County jail imprisonment not exceeding three years
• Getting ordered to pay $10,000 in fines or less

Immigration Consequences for Violating PEN 530.5

If you are an immigrant, one of your biggest concerns is what a conviction would mean concerning your immigration status. When you get convicted on a crime of moral turpitude, you risk deportation or inadmissibility.

When identity fraud involves fraud, it can get categorized as a crime of moral turpitude. This means if you get convicted of the offense when you intended to defraud the victim, then you will face negative immigration consequences. These are severe consequences that must be avoided at all costs. This makes it crucial for an immigrant charged with this offense to get a criminal lawyer to defend them. Avoiding a conviction will mean your immigration status is safe, and should you leave the country, you can re-enter again.

Expungement of your Record

The consequences when convicted of this offense go further than the penalties a defendant will face. When you have a criminal record, it affects many aspects of your life. This offense means you are untrustworthy. With a criminal background, the information is available for all to see. This means, when you are seeking employment, your potential employer on running your background check will see the conviction. This would make them apprehensive about giving you a job, and he or she can use it as a basis to disqualify you.

Looking for a house will also be a challenge. Most landlords want to lease their property to persons they can trust. As a result, many will do a background check on you. Your criminal record will, in most cases, deny you a house that you want.

If you have a criminal record due to violating PEN 530.5, you can get your record expunged in California. This means, your conviction will be deleted from the public database, and no one can access it. You will legally not be required to disclose your criminal past unless applying for a job in the public sector or government agencies.

There are conditions to getting an expungement. When you have completed your jail sentence or probation and fulfilled all the requirements of your sentence, you will be eligible for expungement. Your lawyer will file a petition asking the judge to expunge your record. The prosecutor, in your case, can petition against it if they feel you do not deserve expungement.

The decision to delete your record is, however, left to the judge. Once the petition is received, a hearing date is scheduled. During the hearing, your lawyer will argue why your record needs to be expunged. If the prosecution is against it, they will also present their case, and the judge will make a decision.

PEN 530.5 Conviction and Gun Rights

If you do not want to lose your gun rights, you may need to fight against a conviction on identity theft aggressively. In California, when one is a convicted felon, they lose their right to own or have a gun. If accused of a misdemeanor charge, a conviction may not affect your gun rights.

However, the prosecutor may charge you with a felony for this offense. If a conviction arises from these charges, you will lose your right to have or own a gun.

Avoiding Identity Theft

Anyone can be a victim of identity theft. It is better to avoid getting your identity stolen because the consequences are harmful even if you get the perpetrator punished. You can avoid getting your identity stolen by practicing some of the following:

• Avoid sharing your personal information with untrustworthy sources or people
• If you have old credit cards or documents that can result in identity theft, destroy them as soon as you have no use for them
• For your mailbox, install a lock and lock it always
• When coming up with passwords, be more creative
• Go through your online accounts frequently
• If you have sensitive information you need to see, do not use public internet
• Stay updated on the current scams

What to do if you Suspect your Identity has been Stolen

If you suspect someone has stolen your identity or you discover some of your crucial documents missing, you must do something to mitigate the consequences. Some of the things you must do immediately include:

• Reporting the suspected offense the main credit bureaus
• Make a police report of the alleged offense
• Get in touch with your creditors to establish if the thief has opened new accounts
• Ask to get credit reports
• Analyze the credit reports
• Consider freezing your credit
• If you know their name, enter it into the registry of identity theft in California.

Related Offenses to Identity Theft

When an offense is connected to another, it means a defendant can get charged with it alongside the current offense or instead of the ongoing crime. Various crimes in California relate to identity theft. Some of these include:

PEN 529- False Personation

According to this statute, it is a criminal offense to:

• Impersonate a person. This means, if you pretend to be the person you are not to defraud or deceive another, you are guilty of this offense
• Carry out a deed that can expose the person to prosecution or a lawsuit, or make them get charged to pay money. If you also carry out the personation for personal gain, you will be guilty of the offense.

Credit Fraud

Many statutes speak against credit fraud in California. When you get charged with identity theft, if you used the credit cards of the victim to buy things for yourself, you also commit credit fraud. This means you will face criminal charges for identity theft as well as credit fraud. Some of the things you can do and get you charged with this offense include:

• Using a debit or credit card belonging to another person without their permission
• Using your card to purchase things when you are aware it is not connected to any funds
• Buying goods with a stolen debit card

PEN 470 – Forgery

This is another offense that closely relates to that of identity theft. You get charged with forgery when you:

• Falsify another person’s signature
• You alter documents fraudulently

Based on the circumstances of the offense, a perpetrator of identity theft can also get charged with forgery.

Find a Criminal Lawyer Near Me

The penalties when charged with identity theft are steep, especially when faced with a felony or federal charges. The further consequences can adversely affect the rest of your life if found guilty. It is crucial to avoid a guilty verdict as much as possible or fight to get lesser penalties. To achieve this, you need an experienced criminal lawyer to formulate the best defense on your behalf. At San Diego Criminal Attorney, we are committed to ensuring our clients receive the best defense for this crime. Call us at 619-880-5474 and let us defend you against these claims.