Theft offenses are commonly charged under Penal Code §211, Penal Code §487(a), Penal Code §484, Penal Code Section §484(e), Penal Code §470.
Under California Proposition 47, many theft offenses involving less than $950 are no longer charged as felonies and have instead been reduced to misdemeanors1. However, please note that a penalty reduction is not always available – for example, those who have a prior conviction for any so-called “super strike” will not receive a reduction2. In addition, as discussed below, identity theft does not fall under Proposition 473.
The following is a discussion of two common theft charges, identity and credit card theft.
In California, identity theft is charged as Penal Code § 530.5., and includes (1) the unauthorized use of personal identifying information, (2) the fraudulent possession of personal identifying information, (3) the fraudulent sale, transfer or conveyance of person identifying information, and (4) the knowing sale, transfer, or conveyance of personal identifying information to facilitate its unauthorized use4.
In order to prove identity theft, the prosecution must show that the defendant unlawfully obtained or used another’s personal identifying information willingly or with intent to defraud another5. Additionally, in some instances, the prosecution must show the defendant used the information without the consent of the person whose identifying information he or she was using6.
Accordingly, defenses can include proving there was no intent to defraud or no unlawful purpose, depending on the charges.
For the purposes of California identity theft law, “personal identifying information” includes, but is not limited to, “any name, address, telephone number, health insurance number, taxpayer identification number, school identification number, state or federal driver’s license, social security number, employee identification number, professional or occupational number, savings account number, checking account number, PIN (personal identification number) or password.” (Penal Code § 530.55). Personal identifying information also includes credit card numbers and routing codes. Id.
In addition, “person” means any natural person, living or deceased, as well as any “firm, association, organization, partnership, business trust, company, corporation, limited liability company, or public entity, or any other legal entity.” (Penal Code § 530.55).
1 Richard Couzens, Tricia A. Bigelow, & Gregg L. Prickett, Reduction of Penalties, § 25:4, (Sentencing California Crimes 2019)
3 Richard Couzens, Tricia A. Bigelow, & Gregg L. Prickett, Reduction of Penalties, § 25:4, (Sentencing California Crimes 2019)
An unlawful purpose is defined as obtaining or attempting to obtain credit, goods, services, property, or medical information without the consent of the other person7. Defrauding another is defined as intent to deceive another person in order to cause a loss of money, goods, services, or something else of value, or to cause damage to a legal, financial, or property right8. However, please note that it is not necessary that anyone actually be defrauded or suffer loss as a result of the defendant’s actions in order for the prosecution to press charges9.
It is important to note that under People v. Weir, Proposition 47 does not apply to identity theft under § 530.510. Although this may appear counterintuitive, the Court of Appeal observed that the statute prohibits a person from retaining information rather than the taking of someone’s property11. In addition, the Court noted that it would be difficult to place a numerical value on the stolen information, making it harder to distinguish between cases involving under or over a $950 value12. Finally, § 530.5 “does not explicitly categorize the crime as theft or grand theft, defining the crime instead as a ‘public offense13.’”
Credit Card Fraud/Theft
Under Penal Code §484e to §484j, credit card fraud or theft encompasses several California laws, which make it unlawful to:
- Steal or sell a stolen credit card,such that the person has acquired or retained possession of a credit card or account information without the true owner’s consent. This can be charged as either a misdemeanor or a felony, depending on the facts of the case. (Penal Code §484e).
Under Penal Code §484e, acquiring four or more cards issued in the names of four or more persons in a 12-month period is grand theft14. In addition, under People v. Butler, the Court of Appeals determined that the term “access card,” as used in the statute, included cell phones15. More specifically, cell phones that have been unlawfully programmed with electronic identification numbers that have already been assigned to another person is a felony under Penal Code §484e16.
14 Laurie L. Levenson & Alex Ricciardulli, Miscellaneous fraud crimes under Penal Code—Credit card fraud—Unlawful possession and sale of credit cards, § 9:24 (The Rutter Group 2019)
15 People v. Bulter, 43 Cal.App.4th 1224 (Ct. App. 1996)
16 Laurie L. Levenson & Alex Ricciardulli, Miscellaneous fraud crimes under Penal Code—Credit card fraud—Unlawful possession and sale of credit cards, § 9:24 (The Rutter Group 2019)
Initially, courts could not decide whether Proposition 47 should apply to §484e.17 However, in People v. Romanowski, the California Supreme Court held that §484e is an offense eligible for penalty reduction under Proposition 4718. Additionally, “[i]n the context of §484e, value is based on the information obtained, not the value of any property that may have been purchased with the information19.” Thus, in order to determine the value of the information, courts will attempt to determine the market value of the information20. Finally, in cases where the credit card information has already been used to obtain goods or services, the value is at least the value of those goods and services21.
Forge a credit card, such that the person has, with intent to defraud, designed or altered a counterfeit card. This is charged as a forgery, which can be either a misdemeanor or a felony. (Penal Code §484f). For example, it is considered credit card forgery to sign another person’s name to a credit card purchase slip22.
Use of a stolen or forged credit card, for the purpose of obtaining money, goods, services, or anything else of value. Please note that if the value of the goods or services exceeds $950 in any consecutive six-month period, this will constitute grand theft. If the amount is less, it is a misdemeanor. (Penal Code §484g)
Under Penal Code §484g, a person cannot withdraw money using a card that they know has been revoked23. In addition, being charged under §484g does not prevent the State from bringing additional burglary charges24.
Knowingly accept a stolen or fraudulent credit card if you are a retailer, regardless of whether you have furnished goods or services as a result of the transaction. If the payment received by the retailer exceeds $950, this will be charged as grand theft. (Penal Code §484h).
Alter or forge credit card, such that the person has made, changed, or modified a credit card with intent to defraud. This is considered forgery in California, so it carries with it either a misdemeanor or felony charge. (Penal Code §484i).
17 Richard Couzens, Tricia A. Bigelow, & Gregg L. Prickett, Reduction of Penalties, § 25:4, (Sentencing California Crimes 2019)
22 Laurie L. Levenson & Alex Ricciardulli, Miscellaneous fraud crimes under Penal Code—Credit card fraud—Forgery and use of forged credit cards, § 9:25 (The Rutter Group 2019)
23 Laurie L. Levenson & Alex Ricciardulli, Miscellaneous fraud crimes under Penal Code—Credit card fraud—Unauthorized use of credit card, § 9:25 (The Rutter Group 2019)
6. Communicate to another person or entity the number of an existing, canceled, expired or nonexistent credit card number, with the intent that it be used to avoid paying any lawful charge. This is charged as a misdemeanor. (Penal Code §484j)
These charges can be defended by demonstrating the defendant did not have the intent to defraud. The defendant could also show that they used the credit card with the consent of the original cardholder or issuer of the card25.
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We have successfully defended many cases involving identity theft. If you have a pending case in Los Angeles or San Bernardino County, contact Alice Tavoukjian today at (626) 386-8606 for a free consultation.