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Name: In re Rolando S.
Case #: F061153
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/21/2011

Willfully obtaining another person’s email account password and use of it to access a Facebook account to post prurient messages on friends’ walls constitutes identity theft. Minor received an unsolicited text message providing the victim’s email password which he then used to access her Facebook account. Once he had access to the Facebook account he posted lewd and sexually explicit comments to the victim’s male friends. Minor’s actions constituted identity theft under Penal Code section 530.5, subdivision (a). Although minor made no effort to initially obtain the email password, by choosing to remember it and then affirmatively use it to gain access to the victim’s electronic accounts, he willfully obtained the password so as to meet the first element of identity theft. The second element of the statute, use of the identifying information for an unlawful purpose without the victim’s consent, does not necessarily require criminal conduct and here was met by minor’s use of the identify information to commit the intentional civil tort of libel. Although not raised by the parties, the court found the conduct also constituted the criminal offense of section 653m, subdivision (a) (contact by electronic communication with another using obscene language with intent to annoy).