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Name: People v. Barba
Case #: D060457
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/20/2012

Penal Code section 530.5, subdivision (a) (unlawful use of personal identifying information) does not require some form of personation. Defendants were charged with violating section 530.5, subdivision (a) and other factually related offenses. At the preliminary hearing, evidence was introduced that business checks containing personal identifying information were taken from the victim’s vehicle. Defendants later attempted to cash some of the checks that they completed. The trial court granted the defendants’ motion to dismiss the section 530.5 charge, reasoning that the statute was intended to cover the situation where one represents himself to be another when cashing a check (i.e., contains an element of personation) and not when someone forges a check. Because defendants did not represent themselves as another during the forged check cashing scheme, section 530.5, subdivision (a) was inapplicable. Reversed. The plain and ordinary words of the statute do not contain a requirement that a defendant falsely personated another. Rather, the statute clearly provides that anyone who obtains personal identifying information and uses it without consent for an unlawful purpose violates section 530.5, subdivision (a). The legislative history of the statute supports this interpretation. In 2006, by removing certain language from the statute, the Legislature indicated its intention not to require that a defendant portray himself as the person whose information was used. The appellate court also rejected defendants’ theory that section 530.5, subdivision (a), without a personation element, was merely forgery. Although the two statutes may overlap, it is possible to commit forgery by using a fictitious check whereas with section 530.5, subdivision (a), a real person’s identity must be misused. Forgery statutes protect the recipient of the forged document from being defrauded; identity theft protects the holder of the personal information. By submitting the stolen checks for cashing, defendants wilfully obtained and used the personal identifying information provided on the checks without consent to obtain money to which they were not entitled.