Offense
Obtain any personal identifying info and use for “any unlawful purpose, including “to obtain credit, goods, services, or medical information” (part (a)) or
Transfer any such information, knowing transferee will use for unlawful purpose (part (d)(2))
Aggravated Felony (AF)
Assume AF if loss to victim/s exceeds $10,000. To avoid that, see Advice to 470, above.
Not AF based on 1 year imposed, but 364 is always best. See Advice.
Crime Involving Moral Turpitude (CIMT)
Not a CIMT. Ninth Circuit held it is not, but in at least one case, USCIS wrongly asserted it is divisible. See Advice re best practice for ROC.
Other Removal Grounds
No other removal ground.
Advice and Comments
PC 530.5(a), (d)(2)
AF with 1 yr. Conviction of theft, forgery, or counterfeiting is an AF if 1 yr or more is imposed. These are not elements of 530.5 and it can’t properly be held an AF under any of these categories regardless of underlying conduct.1This section discusses why PC 530.5(a) is not an AF as theft, forgery, or counterfeiting even if a year or more is imposed. This is based on the federal categorical approach; for more information see ILRC, How to Use the Categorical Approach Now (2021) at www.ilrc.org/crimes-summaries.
If a sentence of a year or more is imposed, “theft”, “forgery”, and “counterfeiting” are AFs under 8 USC 1101(a)(43)(F), (R). Here a “theft” offense requires as an element a taking of property by stealth, without consent. See discussion at PC 484. “Forgery” and “counterfeiting” require, at a minimum, use of a written instrument.
Under the categorical approach, 530.5(a) does not have these elements and thus is not an AF if a year is imposed. Section 530.5(a) provides:
(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information 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 is guilty of a public offense ….
Section 530.5 does not require commission of theft, forgery, or counterfeiting because the minimum conduct for guilt is to lawfully obtain personal information of another, and use it for “any unlawful purpose” without the person’s consent. It differs in important ways.
First, the personal information can be obtained legally, without theft, fraud, forgery, etc. – for, example during a valid business transaction or among family. The term “willfully” just means on purpose, and “does not require any intent to violate law, to injure another, or to acquire any advantage.” See PC 7(b)(7). In People v. Jimenez, 9 Cal. 5th 53, 63 (2020), the California Supreme Court explained why 530.5(a) is not theft:
Although lawmakers and the public sometimes refer to section 530.5, subdivision (a)’s prohibition on the misuse of personally identifying information as “identity theft,” section 530.5, subdivision (a) makes no mention of theft. It makes no reference to the consolidated theft offenses in section 484. It contains no requirement, “central to the crime of theft[,] that the information be stolen at all” (People v. Truong (2017) 10 Cal.App.5th 551, 562, 216 Cal.Rptr.3d 246 (Truong)), or that the victim’s information was taken with “the intent to permanently deprive the owner of its possession” (People v. Page (2017) 3 Cal.5th 1175, 1182, 225 Cal.Rptr.3d 786, 406 P.3d 319 (Page)). Indeed, by its very terms, 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.
Second, section 530.5 does not require that the other person was deprived of anything of value, including property, either temporarily or permanently. See Linares-Gonzalez v Lynch, 823 F.3d 508 (9th Cir. 2016) (holding that PC 530.5(a) is not a CIMT). See further discussion at next endnote.
Third, section 530.5(a) is not divisible into different elements such as stealing, forging a document, tor counterfeiting. It requires only using the person’s information “for any unlawful purpose.” The inclusion of possible purposes—“any unlawful purpose, including to obtain … credit, goods, services …”—are illustrative examples, described by the term “including.” Under the categorical approach, such examples are different “means” to commit the single offense, and not “elements” of multiple, separate offenses, and the statute is not divisible. In Mathis v. United States, 579 U.S. 500, 518 (2016) the Supreme Court stated:
Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of commission. United States v. Howard, 742 F. 3d 1334, 1348 (CA11 2014); see United States v. Cabrera-Umanzor, 728 F. 3d 347, 353 (CA4 2013).”
The use of the term “including” in § 530.5(a) shows that this is a quintessential list of illustrative examples. In the above quotation, the Court in Mathis approvingly cited two cases, Howard and Cabrera-Umanzor, that both found statutes to be indivisible because they employed the term “includes” or “including.”
See also CALCRIM No. 2040. “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully obtained someone else’s personal identifying information; 2. The defendant willfully used that information for an unlawful purpose; AND 3. The defendant used the information without the consent of the person whose identifying information (he/she) was using.” But to avoid a possible wrongful AF charge, keep sentence under 1 yr for each count and/or keep conduct involving forgery, counterfeiting, or obtaining goods out of the ROC. If D must take 1 yr or more, however, 530.5 is a reasonable choice.
CIMT. The Ninth Circuit held that the minimum conduct to commit 530.5(a) or (d)(2) is not a CIMT because it involves using the info for “any unlawful purpose” with no requirement of harm, loss, or intent to defraud, for example, working under another person’s name. Under the categorical approach, the sections cannot be held divisible as to the type of unlawful conduct.2
Section 530.5(a) is overbroad and indivisible as a CIMT, so that no conviction is a CIMT for any immigration purpose, regardless of information in the record of conviction.
The Ninth Circuit found that it is not a CIMT because the minimum conduct does not require fraud, a harmful taking, or harm. Linares-Gonzalez v Lynch, 823 F.3d 508 (9th Cir. 2016); see also Tijani v. Holder, 628 F.3d 1071, 1078 (9th Cir. 2010) (distinguishing § 530.5(a), which does not have an element of fraud, from § 532(a)(1), which it found to have such an element.) Section 530.5(a) criminalizes the willful use of another’s personal identifying information, regardless of whether the user intends to defraud and regardless of whether any actual harm is caused. See People v. Hagedorn (2005) 127 Cal.App.4th 734, 818 (upheld conviction for working under another’s name, and using the identifying information to cash the paycheck); People v. Johnson, (2012) 209 Cal.App.4th 800, 818.
Section 530.5(a) is not “divisible” into offenses with different types of intent, beyond using the information for “any unlawful purpose.” The statute does give examples of unlawful purposes, stating “any unlawful purpose, including to obtain … credit, goods, services …”. However, these are illustrative examples, described by the term “including.” As such, they are mere “means” to commit one offense, rather than “elements” of multiple, separate offenses. See discussion of Mathis v. United States, 579 U.S. 500, 518 (2016), in the endnote above regarding theft, forgery, and counterfeiting.
But best practice is to avoid a plea to obtaining credit or goods, and try to plead to specific conduct that does not involve loss, harm, or fraud.
LRA Mandatory Detention: If D was not admitted into the U.S., ICE may argue that a conviction or pending charge triggers mandatory detention without bond under the 2025 LRA. The safest way to avoid LRA is to plead to an offense unrelated to theft or burglary, e.g., trespass, PC 32, 594. But if that is not possible, PC 530.5(a) is a reasonable option to avoid the LRA, because California courts have found it is not theft (or burglary).3
To be a qualifying offense under the LRA, section 530.5(a) must match the California definition of theft set out at PC 484. Section 530.5(a) prohibits lawfully obtaining another’s personal identifying information and using it for “any unlawful purpose” without their consent. In 2020, the California Supreme Court specifically held that section 530.5(a) is not “theft” and does not match the definition at PC 484. The information need not be “stolen.”
Although lawmakers and the public sometimes refer to section 530.5, subdivision (a)’s prohibition on the misuse of personally identifying information as “identity theft,” section 530.5, subdivision (a) makes no mention of theft (See Gonzales, supra, 2 Cal.5th at p. 865, 216 Cal.Rptr.3d 285, 392 P.3d 437.). It makes no reference to the consolidated theft offenses in section 484. It contains no requirement, “central to the crime of theft[,] that the information be stolen at all” (People v. Truong (2017) 10 Cal.App.5th 551, 562, 216 Cal.Rptr.3d 246 (Truong)), or that the victim’s information was taken with “the intent to permanently deprive the owner of its possession” (People v. Page (2017) 3 Cal.5th 1175, 1182, 225 Cal.Rptr.3d 786, 406 P.3d 319 (Page)). Indeed, by its very terms, 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.
People v. Jimenez, 9 Cal. 5th 53, 63 (2020)
Further, theft under PC 484 requires an intent to permanently or substantially deprive the other person of something of value. Section 530.5 does not require any intent to deprive or defraud the person of something of value, or gain any tangible benefit, whether permanently or temporarily. Linares-Gonzalez v Lynch, 823 F.3d 508 (9th Cir. 2016); see also Tijani v. Holder, 628 F.3d 1071, 1078 (9th Cir. 2010), distinguishing § 530.5(a), which does not have an element of fraud, from § 532(a)(1), which it found to have such an element. Section 530.5(a) criminalizes the willful use of another’s personal identifying information regardless of whether any actual harm is intended or caused. See, e.g., People v. Hagedorn (2005) 127 Cal.App.4th 734, 818 (upheld conviction for working under another’s name, and using the identifying information to cash the paycheck); People v. Johnson, (2012) 209 Cal.App.4th 800, 818.
It is certainly better than a plea to 487 or 459 to help a person who entered without inspection avoid mandatory detention.
The problem is that ICE could assert that the LRA applies to 530.5 and most detained immigrants have no representative and cannot make the legal argument. This is why an offense that obviously is not theft, e.g., vandalism, is safer. See discussion at Overview: Mandatory Detention. (Note that people not admitted to U.S. also are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.)
SB54: This felony conviction permits law enforcement to notify/transfer to ICE for 15 years. This misdemeanor wobbler permits law enforcement cooperation for 5 years. See SB 54 advisory at www.ilrc.org/crimes-summaries.