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Being accused of identity theft in California or in federal court is serious. A state charge under Penal Code 530.5 can be filed as a misdemeanor or a felony, and in federal court a conviction for aggravated identity theft carries a mandatory two-year prison term that generally must run consecutively to the sentence for the underlying crime. If you are under investigation or have been charged, the specific statute matters a great deal.
If you are the victim of identity theft, this page is not written for you. Report it at the Federal Trade Commission’s IdentityTheft.gov and to your local police department. This page is for people accused of, or investigated for, identity-related offenses.
Identity theft charges range from a single misdemeanor count under California Penal Code § 530.5 to federal aggravated identity theft under 18 U.S.C. § 1028A, which carries a mandatory two-year consecutive prison term. Which system you are in shapes everything that follows. Vikas Bajaj represents people in both.
Understanding Identity Theft Laws in California (Penal Code 530.5)
California Penal Code 530.5 contains several separate offenses:
- 530.5(a), use of identifying information: willfully obtaining another person’s personal identifying information and using it for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without consent.
- 530.5(c), acquiring or retaining with intent to defraud: acquiring or keeping another person’s identifying information with intent to defraud. A first offense involving one person is a misdemeanor; it can be charged as a felony with a prior 530.5 conviction or when the information of 10 or more people is involved.
- 530.5(d), selling or transferring: selling, transferring, or conveying another person’s identifying information with intent to defraud, or with actual knowledge that it will be used to commit a 530.5(a) violation. Selling or transferring information with knowledge of intended fraudulent use (530.5(d)(2)) is a felony only.
- 530.5(e), mail theft: mail theft as defined in 18 U.S.C. § 1708.
“Personal identifying information” is defined in Penal Code 530.55(b) and includes items such as names, addresses, Social Security numbers, driver’s license numbers, account and card numbers, and biometric data.
Penalties Under Penal Code 530.5
A 530.5(a) violation is a “wobbler”: it is punishable by a fine, by up to one year in county jail, or both, or by felony imprisonment under Penal Code 1170(h). Penalties for subdivisions (c) and (d) depend on the subdivision, prior convictions, and the number of people whose information was involved. When someone is convicted of another crime committed using a person’s identifying information, the court records must reflect that the person whose identity was used did not commit it (530.5(b)). Restitution is commonly ordered.
Federal Identity Theft: 18 U.S.C. § 1028 and § 1028A
18 U.S.C. § 1028
18 U.S.C. § 1028 covers fraud in connection with identification documents, authentication features, and means of identification. Subsection (a)(7) makes it a crime to knowingly transfer, possess, or use another person’s means of identification, without lawful authority, with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that violates federal law or is a felony under state or local law. Maximum penalties range from one year to 15 years depending on the conduct and amounts involved, up to 20 years in drug-trafficking or violent-crime cases or after a prior conviction, and up to 30 years in terrorism cases.
Aggravated Identity Theft: 18 U.S.C. § 1028A
18 U.S.C. § 1028A applies when a person, during and in relation to an enumerated felony, knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. The enumerated felonies include mail, wire, and bank fraud, theft of government money under § 641, and many other fraud offenses. A conviction carries a mandatory two-year prison term (five years for terrorism offenses), probation is not allowed, and the term generally must run consecutively to the sentence for the underlying felony.
Dubin v. United States (2023)
For years, prosecutors added § 1028A counts whenever a name or identifier appeared somewhere in an alleged fraud, for example a patient’s name on a padded bill. In Dubin v. United States, 599 U.S. 110 (2023), the Supreme Court rejected that approach. It held that a defendant “uses” another person’s means of identification “in relation to” a predicate offense only when the use is at the crux of what makes the conduct criminal. In Dubin, a healthcare provider’s overbilling for services actually provided to a real patient did not become aggravated identity theft just because the bill included the patient’s Medicaid number.
After Dubin, every § 1028A count deserves scrutiny: was the identity misuse the heart of the alleged fraud, or incidental to a billing or payment method? Challenging an improper § 1028A count can remove a mandatory two-year consecutive sentence.
Common Types of Identity Theft Charges
Financial Identity Theft
Using another person’s card, account, or credit information to make purchases, open accounts, or move money, often charged with bank fraud or access-device offenses.
Benefits and Pandemic-Relief Cases
Using another person’s identity to apply for unemployment benefits, loans, or tax refunds.
Medical Identity Theft
Using someone else’s identifying information to obtain medical services, prescriptions, or insurance payments, or to bill a health care program. These cases often overlap with healthcare fraud, and Dubin is especially relevant here.
Synthetic Identity Fraud
Combining real and fabricated information to create a new identity used to open accounts.
Criminal Identity Theft
Giving another person’s name or information to police during an arrest or citation.
Computer-Related Identity Cases
Phishing, credential theft, and data breaches can lead to identity theft charges alongside computer crime charges.
Defense Strategies for Identity Theft
- Intent. 530.5(a) requires a willful taking and use for an unlawful purpose; 530.5(c) and (d) require intent to defraud or actual knowledge. Federal § 1028(a)(7) requires intent to commit or aid unlawful activity.
- Authorization and consent. Family members, business partners, and employees often had permission, or a reasonable belief in permission, to use information.
- Attribution. IP addresses, shared devices, and shared networks do not prove who was at the keyboard.
- The Dubin “crux” test. In federal cases, whether a § 1028A count can survive at all.
- Unlawful searches. Phone, computer, and account searches must comply with the Fourth Amendment and California law. See motions to suppress under Penal Code 1538.5.
- Mistake of fact. An honest and reasonable belief, for example that a card was authorized for a purchase, can negate the required intent.
Identity Theft Cases in San Diego State and Federal Court
State identity theft cases are prosecuted by the San Diego County District Attorney in San Diego Superior Court. Federal identity theft cases from San Diego are heard in the Southern District of California; see how federal cases move through the Southern District of California.
Federal Cases Nationwide
Federal identity theft and aggravated identity theft cases are charged in every federal district, and the agents and Department of Justice prosecutors on a case may be far from where the accused person lives. Early contact is the same work in any district: counsel can reach the case agents and the Department of Justice prosecutors handling the matter, learn what can be learned about the person’s status, and address subpoenas, search warrants, target letters, and interview requests before a charging decision is made.
The Importance of Pre-File Advocacy
One of the most effective strategies happens before a courtroom is involved. By retaining counsel as soon as you learn of an investigation, it may be possible to present the defense to the prosecutor before a charging decision is made.
Frequently Asked Questions (FAQs)
Q: Is identity theft a felony in California?
A: It can be. A Penal Code 530.5(a) violation can be charged as a misdemeanor (up to one year in county jail and/or a fine) or as a felony under Penal Code 1170(h). The charging decision depends on the facts and criminal history.
Q: What is aggravated identity theft?
A: Under 18 U.S.C. § 1028A, it is knowingly transferring, possessing, or using another person’s means of identification without lawful authority during and in relation to certain federal felonies. It carries a mandatory two-year consecutive prison term.
Q: What did the Supreme Court decide in Dubin v. United States?
A: In 2023 the Court held that § 1028A applies only when the use of another person’s identity is at the crux of what makes the underlying conduct criminal, not when a name or number is merely part of a billing or payment method.
Q: Can I be charged in both state and federal court?
A: Yes. The same conduct can violate both state and federal law. Which prosecutor takes the case affects the charges, procedure, and sentencing exposure.
Q: I used a family member’s information with permission. Is that identity theft?
A: Consent is a central defense. Penal Code 530.5(a) addresses use without consent, and intent to defraud is required for other subdivisions. The facts and any evidence of permission matter.
Q: Should I talk to the detective or agent investigating me?
A: Speak with a lawyer first. Statements can become evidence, and a false statement to a federal agent is a separate crime.
Contact Vikas Bajaj or call (619) 525-7005 to arrange a confidential consultation about an identity theft investigation or charge.
This page is attorney advertising and general information, not legal advice. Every case turns on its own facts.