“So-Called” Identity Theft Is Not Covered by Prop. 47
September 7th, 2020

People v. Jimenez (2020) 9 Cal.5th 53 held that misuse of identifying information in violation of PC 530.5(a) cannot be reclassified as shoplifting because section 530.5(a) is not a theft offense. (Jimenez, supra, 9 Cal.5th at pp. 58-59; see also People v. Harrell (Aug. 10, 2020, A156017) ___ Cal.App.1st ___ .)

Jimenez discusses several reasons why a violation of PC 530.5(a) is not a theft offense, even though it is sometimes referred to as “identity theft.” First, neither the term “theft” does not appear in the statutory language. (Jimenez, supra, 9 Cal.5th at p. 63.) Nor does the statute contain requirements that are central to the crime of theft such as a requirement that the defendant intend to permanently deprive the victim of any form of property. (Ibid.) Indeed, “the offense of misuse of personal identifying information can be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it.” (Ibid.) In other words, PC 530.5(a) can be violated even if the victim’s identifying information was not stolen.


Second, PC 530.5 is directed at unlawful use of a person’s identity, not at unlawful taking of property. (Jimenez, supra, 9 Cal.5th. at p. 64.) The legislative history of the statute reflects the legislature’s intent to address various ” ‘ripples of harm’ that ‘flow from the initial misappropriation’ of identifying information—harm that often goes ‘well beyond the actual property obtained.’ ” (Id. at p. 64 [quoting Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2886 (2005-2006 Reg. Sess.) as amended May 26, 2006].) Thus, a felony violation of the statute turns on the seriousness of the crime and its consequences for the victim, rather than the type or value of property involved. (Jimenez, at p. 64, citing People v. Weir (2019) 33 Cal.App.5th 868.) Moreover, PC 530.5 is contained in a Penal Code chapter entitled ” ‘False Personation and Cheats,’ ” rather than in the chapter entitled ” ‘Larceny.’ ” (Jimenez, at p. 64.)

Finally, the new theft offense of shoplifting (PC 459.5(a)) is “ill suited to punish misuse of identifying information” because these two laws are fundamentally different, reflecting different legislative rationales. (Jimenez, supra, 9 Cal.5th at p. 65.) “The rationale for misdemeanor shoplifting is that culpability for an unlawful taking of property should reflect degrees of danger that depend on the time of day, nature of the entry, and value of the property involved.” (Harrell, supra.) By contrast, PC 530.5 “prohibits a person from ‘acquiring, retaining, or using information, rather than taking it,’—itself a fair indicator that the Legislature was concerned with use, not theft. [Citation.] And on its face, it addresses harms reaching well beyond theft, implicating issues of privacy and control of personal data.” (Jimenez, at p. 65; see also Harrell, supra.)

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